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Full text of "Illinois Appellate Court Unpublished Opinions: second series"

49660 

HENRY SZYMANOWSKI, 

Plaintiff "Appellee, 
vs„ 

ROYAL B, KELLOGG s 

Def endant - Appe 1 1 an t , 



APPEAL FROM THE 

MUNICIPAL COURT OF 
CHICAGOo 




MRo JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT o 

Suit for personal injuries was filed in 1957, Default was 
entered against defendant in 1958 for failure to appear, and a 
judgment for $35000 was entered on March 23^ 1962„ A motion to 
vacate the judgment was filed by defendant on November 1, 1963, 
From a denial of his motion on January 16, 1964 defendant has 
appealed. 

Substituted service of process on defendant was sought to be 

accomplished under the terms of the Illinois Motor Vehicle Law. 

Section 9-301 of that act (111. Rev, Stat„g cho 95 1/2, § 9=301) 

provides in pertinent part; 

(a) The use and operation by any person or his 
duly authorized agent or employee of a motor vehicle or 
motorcycle over or upon the highways of the State of 
Illinois g shall be deemed an appointment by such person 
of the Secretary of State to be his true and lawful attor- 
ney upon whom may be served all legal process in any action 
or proceeding against him, growing out of such use or 
resulting in damage or loss to person or propertyj and 
said use or operation shall be signification of his 
agreement that any such process against him which is so 
served 5 shall be of the same legal force and validity as 
though served upon him personally if such person is a 
non-resident of this State * * *, 



(b) Service of such process shall be ma 
a copy upon the Secretary of State or any emp 
office designated by him to accept such servi 
or by filing such copy in his office ^ togethe 
fee of $2.00 and such service shall be suffic 
upon said personj if notice of such service a 
the process are 5 within 10 days thereafter 5 s 
tered mail by the plaintiff to the defendant 5 
known address of the said defendant 5 and the 
affidavit of compliance herewith is appended 

* ■*• * 



de by serving 
loyee in his 
ce for him, 
r with a 
lent service 
nd a copy of 
ent by regis- 

at the last 
plaintiff ' s 
to the summons . 



(e) When a final judgment is entered against any 
non-rejsident defendant who shall not have received notice 



-2- 

of service and a copy of the process by registered 
mail, required to be sent him as above provided, 
and such person, * * * shall within one year after 
the notice in writing given him of such judgment, or 
within 5 years after such judgment, if no such notice 
has been given, as aforesaid, appear in open court 
and petition to be heard touching the matter of such 
judgment 5 and shall pay such costs as the court may 
deem reasonable in that behalf, the person so petition- 
ing may appear and answer the plaintiff's allegations, 
and thereupon such proceeding shall be had as if the 
defendants had appeared in due season and no judgment 
had been rendered. 

Defendant's motion to vacate was a pro forma one embodied 

in his notice of motion. We must therefore look to his affidavit 

in support of the motion to find its substance. The allegations 

of the affidavit read in their entirety as follows; 

1, That on March 28, 1962 5 ^^ ®^ parte judgment 
in the amount of $3000,00 and costs was entered against 
your affiant, 

2, That service of summons was alleged to be had 
upon your affiant pursuant to provisions of the Illinois 
Motor Vehicle Act Section 9-301 thereof, 

3o That the first notice of this judgment that 
your affiant received was a letter addressed to your 
affiant at 5049 Scenic Drive j Pittsburgh 36, Pennsyl- 
vania g which letter was addressed from the Clerk of the 
Municipal Court of Chicago. 

4, That since receiving this letter your affiant 
has engaged an attorney, Rolf R, Larsen, of Pittsburgh, 
Pennsylvania, to investigate the circumstances sur- 
rounding this judgment, 

5, That as a result of this investigation, it 
has been determined by your affiant that the service 
upon which default judgment was previously entered 
herein, was based on an affidavit of compliance showing 
service to be made upon this affiant, by mailing a copy 
of the summons to affiant on December 11, 1958, to 
Windsor, Connecticut, whereas your affiant on December 11, 
1958, lived at 18 Progress Avenue, Rockville, Connecticut. 

6, Your affiant now desires to appear and defend 
the claim presented in the above entitled cause, and has 
a good and meritorious defense to such claim in that 

the damage sustained is minor property damage and to 
the best of affiant's knowledge no one involved received 
personal injuries. 

Whether made under Section 9-301 (e) as quoted above, or 

under Section 72 of the Civil Practice Act (111, Rev, Stat., 



ch. llOj § 72) J this motion is insufficient on its face. We 
shall not go into the reasons therefor since defendant, in 
effect, concedes its insufficiency by basing his principal 
argument in this court on the proposition that the judgment was 
void for lack of jurisdictionj citing Forsberg v. Harris . 27 111, 
App. 2d 159, 175 and Rompza v„ Lucas „ 537 Illo App. 106,, While, 
as can be seen in defendant's affidavit , this point was not 
raised in the trial court, nevertheless 5 it is true that a 
void judgment may be attacked at any timeg and in any court, 
so we shall consider defendant's contentions in this regards 

It is pointed out that a substituted service statute re- 
quires strict compliance. This we acknowledge, Schueren v, 
Querner Truck Lin es„ 22 111, App, 2d 183, 191, It is then 
argued that the trial court never acquired jurisdiction over 
defendant because plaintiff did not file the necessary statutory 
affidavit showing that he had complied with the act (Section 9=301 
(b) quoted above) in the serving of summons upon the Secretary of 
State and in the mailing of notice thereof g etc,g to defendant. 
This is a strange argument g indeed, since defendant's affidavit 
in support of his motion to vacate the judgment makes specific 
reference to the fact that judgment had been entered on the basis 
of such an affidavit of compliance. 

Prior to argument of the case in this court, our attention 
was called to the fact that the file did not contain an affidavit 
of compliance. On plaintiff's motion, however, it was made to 
appear, by affidavit of counsel and otherwise 3 that there had 
been such an affidavit in the file; that it had been seen there 
by plaintiff's attorney from time to time during pendency of the 
case in the trial court; that counsel for both parties had been 
in possession of copies of such an affidavit, there being no dispute 



as to its contents but only as to whether or not it had ever 
been lodged in the court f i le „ It seemed to us a matter of no 
consequence that there was no notation of an affidavit of com- 
pliance on the trial court's "half sheet" for the case, because 
Section 9-301 (b) does not require that such an affidavit be 
"filed" but only that it be "appended to the summons," Further, 
in preparation of the record for filing in this court, defendant 
himself 5 by his attorneys had served notice of a motion in the 
trial court to restore the file because of its having been lost 
or destroyed, and submitted in support of the motion copies of 
the various documents to be restored „ Included among such papers 
was an unsigned copy of the affidavit of compliance (indicating 
that it had been executed on December 18, 1958, seven days 
after service on the Secretary of State and mailing notice, 
etc. 5 to defendant) and the motion to restore the file informed 
the court that such an affidavit, signed by plaintiff's attorney, 
had been previously filed in the causeo Before this motion 
was acted upon the file was found, but it did not then contain 
an affidavit of compliance. 

Considering all thdse matters, we ordered the file restored 
by the inclusion of the affidavit of compliance. Defendant, 
wishing opportunity to make further argument on the point, made 
a motion to vacate and the motion was taken with the case. 

Defendant now attempts to explain his previous references 
to the fact that an affidavit of compliance had been filed, upon 
a mistake arising from the presence of a copy of an affidavit 
in the files of defendant's insurance company, and the incorrect 
assumption that it must therefore have been filed. Now defendant 
says that the absence of the affidavit from the file when the 
latter was found, after having been lost for many weeks, should 



„5- 

be taken as conclusive that the affidavit had never been prop- 
erly filed. We are not impressed with this argument. For the 
reasons stated above, we adhere to our position in ordering 
restoration of the affidavit of compliance, and defendant's 
motion to vacate that order is denied. 

The judgment of the Municipal Court of Chicago, and its 
order denying defendant's motion to vacate, are affirmed. 

AFFIRMED. 

Mccormick, P.J., and DRUCKER, J,, concur. 

Publish abstract only. 



^9890 

SALVATORE NICK MESSINA, 

P Iain Llff "Appellant 

V. 

CITY OF CHICAGO, d Municipal 
Corporation, 



APPEAL FROM 

CIRCUIT COURT 
COOK COUNTY 




Defendant-Appellee. 
MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT; 

This action was brought to recover damages for personal 
injuries sustained in a fall on a defective public sidewalk. The 
jury returned a verdict for plaintiff in the amount of $10,000 and 
judgment was entered thereon. Plaintiff appeals^ requesting a new 
trial oil the question of damages for the reason tnai the amount of 
the verdict is grossly inadequate in the light of the evidence as to 
loss of income and medical expenses. 

On October 19, 1959, plaintiff ^ an insurance debit man, was 
on his wa}/ to make a call when the heel of his right foot caught in 
a broken portion of a City of Chicago sidewalk. He testified that he 
fell to tne ground and that there was a great deal of pain in the 
ankle area of the right foot. He proceeded to the heme of the customer, 
where he cleaned up, and immediately went home and retired. For a 
week or ten days after the accident the right foot was soaked in 
warm water and epsom salts, but the pain grew worse. Plaintiff 
telephoned his family doctor and the foot was again soaked for the 
next few weeks pursuant to the doctor's instruction's. The pain 
continued and the family doctor was again called. Aa appointment was 
arranged with Dri Maurice Stamler, an orthopedist., for X-ra_ys to be 
taken at the Columbus Hospital on November 30th. 

The X-rays showed the existence of an abnormal bone mass 
located behind the ankle joint on the right foot^ in the area where 
plaintiff had complained of pain to Dt , Stamler. The doctor testified 



that the bone mass did not belong there,, and thai, it needed observation 

because of its existence and because plaintiff had injured it. Surgery 

was performed by the doctor in December at the Columous Hospital for 

the removal of the bone mass; a cast was applied and the plainciff 

was discharged from the hospital a few days later. 

Plaintiff continued in the care of Dr, Scamlei-j but the pain 

continued. Plaintiff was re-hospitalized for ten days in February 

of 1960 for observat ion, during which stay he underwent a medication 

treatment on the foot consisting of the insertion of a needle into 

the foot. Another cast was applied and upon his release plaintiff 

continued m the care of Dr. Stamler until he was hospitalized again 

in May of 1960 for another ankle operation. Dr. Stamler testified 

that this second operation was necessitated due to the appearance 

of arthritis in the joint, the restricted motion of the foot, and 

the continued pain and swelling. The doctor stated that the painful 

joint had to be eradicated, namely, the ankle joint destroyed and 

bone chips placed into the area where the joint had been removed, the 

purpose of which was to eliminate the side-to-side sway of the foot. 

The bone chips used in the operation were taken from plaintiff's ilium, 

located above the hip, necessitating an operation m that area to 

effect their removal. A third cast was applied and plaintiff was 

released from the hospital twenty days after he had been admitted. 

Plaintiff continued in the care of Dr. Stamler and the 
condition of his foot grew worse. An infection developed m the ankle 
due to the operation, which was referred co by Di . Sramler as a 
"surgical disaster." Plaintiff received treatment for the infection 
from Dr. Seamier until July of 1960, when he was referred to Dr. Sam 
Banks for treatment. 

Dr. Banks testified that he first examined plaintiff in April 
of 1960 and had X-ra>s taken of the right ankle. The doctor 



„3- 

identified a fracture in tne ankle portion of c ne right foot and also 
noted that there was insufficient calcium in the bones of the foot 
resulting from an insufficient bearing of weight upon the foot. The 
doctor diagnosed a condition of arthritis in the area due to a fraccure 
involving the joints between the talus and che heel bone. An operation 
was leeoTnmended by Dr. Banks , which was the operation performed by 
Dr. Stamler in May of 1960. 

Dr. Banks saw the plaintiff on July 22, i960, and inspected 
the infection above referred to as the "surgical disaster." Plaintiff 
was admitted to the hospital on July 24th and the infected soft tissue 
was removed surgically • A cast was again applied and plaintiff was 
released on the 25th. Plaintiff again saw Dr. Banks on August Sth, at 
which time the cast was changed. A shorter cast was applied to allow 
plaintiff to place more weight on the foot in order to increase the 
calcium m the bones and in order to lessen tne stiffening in the 
ankle joint which resulted from the operation. This cast was removed 
in September. 

Di. Banks recommended another operation in order to make a 
solid fusion at the site of the arthritic joint for tne purpose of 
eliminating motion and thereby eliminating pain. The foot was again 
operated on m December of 1960, the bone chip plug this time being 
taken from, plaintiff's fibula and transplanted into the ankle joint. 
Plaintiff was discharged from the hospital in seven days, and, after 

I a series of cast changes, the cast was removed in March of 1961. 
Dr. Banks testified plaintiff continued to complain of pain in the 
toot and ankle, and that there was some swelling in the area and 
restriction of movement. The last time plaintiff consulted Dr. Banks 

* was June 85 I96I5 at which time plaintiff was given permission to 

work if he felt )^e could carry on, and was told that the eventual out- 
come of his condition could be determined only by an increase in foot 



^4^ 

movement and walking by the plaintiff. 

Dr. Stamler again saw plaintiff in June of 1961, at which time 
more X-rays were taken. The ankle joint had not healed satisfactorily 
and another ankle operation was performed in Sep'.embet. Plaintiff 
still had diffieultv walking, was still in pain and was unable to 
work. A triple arthrodesis, a more involved operation than those 
preceedings was suggested and performed by Dr. Stamler on November 11, 
1963. Instead of using bone chips m this operation, bone segments 
measuring 3 by 2 by 1/4 inches were used to fuse the joint and 
completely eradicate the motion. Dr. Stamler testified that, at the 
time of trials plaintiff had good ankle motion, that the sway from 
side to side was eliminated and that plaintiff had very little pain. 

In response to hypothetical questions n both Dr. Stamler and 
Dr. Banks stated that an accident paralleling that experienced by 
plaintiff could have caused a physical condition paralleling that 
suffered by plaintiff. 

Plaintiff testified that, prior to the accidentj he had no 
trouble with his foot. He had served time in the airay^ coached sports 
teams and participated in sports, all of which he was unable to do 
since the accident. After the accident he stated he was in pain and 
unable to work to any great degree. Immediately before the accident 
he was employed as an insurance debit man at $100 per week, an oc- 
cupation requiring a good deal of walking. Plaintiff received a leave 
of absence from his employer after the accident and did not work 
throughout the year of 1960. He worked two weeks in the summer of 
1961 driving a delivery truck and assembling light furniture, and for 
five or six months, from the summer of 1961 until February of 1962^ as 
an insurance investigator at $100 per week. The foot continued to hurt 
and he stopped work. Thereafter he attempted to find employment, but 



was unable to find a job uiiLil July of 1962 when he was hired as a 
kitchen helper at the Cook County Hospital at $365 per month. This 
employment lasted some three or four months., at which time plaintiff 
was hospitalized for a hernia resulting from a tall while performing 
his duties at the hospital. Plaintiff stated cha:. he was cold to clean 
coffee urns which entailed the stretching of his body, that, while so 
stretching, he was unable tc place weight on his rigtit foot, lost his 
balance and fell, causing the hernia. Since the employment ac the 
Cook County Hospital, plaintiff procured an insurance broker's license 
and was self ■employed?, he earned $200 as a broker ir,. 1963. Plaintiff 
testified that he now walks with a limp. Plaintiff introduced evidence 
of medical bills aggregating $4,442.69 and loss of salaries of $1/3800. 

Initially defendant challenges the jurisdiciion of this 
Coutt on the ground that plaintiff's notice of appeal is fatally 
defective. It appears that the final judgment in r.nis cause was entered 
on March 3, 1964, and that plaintiff's motion for a new trial on the 
question of damages, filed March 19, 1964, was denied on May 21, 1964. 
ViThile the notice of appeal refers to the May 21st order denying the 
motion for a new trial, it does nevertheless refer to the judgment. 
The notice of appeal does relate to an appealable judgment and 
consequently defendant's jurisdictional argument must fail. See Robson 
V. Pennsylvania Railroad Co., 337 111. App. 557. 

Plaintiff maintains that during the coutse of the trial 
several prejudicial errors were committed which caused Che jury to 
render a verdict in an amount lower than that to which the evidence 
clearly shows plaintiff to be entitled. We agree. 

On cross-examination of the plaintiff ^ defense counsel in- 
quired into an accident involving plaintiff in 1958; this line of 
questioning was objected to by plaintiff's counsel, but the objection 
was overruled. Defense counsel stated he would connect up the 1958 



accident to the one Involved here relative to pre- existing injuries, 
but such connection was never made nor any„ rii fact, attempted. 
Inimediateiy following the court's overruling of plaintiff's objection, 
defense counsel asked plaintiff ^ "You engaged an attorney at that time 
and filed a lawsuit, is that correct?" Defense counsel's very next 
question related to an accident involving plaintiff in 1962. Plaintiff 
adtnitLed the 1962 accident, and defense counsel then seated, "You 
dtdn't tell us anything about chat on direct examination this morning, 
did you?" Again plaintiff's counsel objected., no ruling was made on 
the oDjeccion and defense counsel continued the questioning. Neither 
the 1958 accident nor the 1962 accident were brought out on direct 
examination of plaintiff. 

Oi\e of defendant's witnesses was asked on direct examination 
whether plaintiff filed a claim against his employer in connection 
with the 1962 accident, which question the witness answered in the 
af f itTnative. Plaintiff's objection to the question as being prejudicial 
was overruled. When plaintiff's counsel attempted :o establish the 
amount of the claim, defense counsel objected^ stating, "That is 
Improper. He made a claim, and that is the only thing in issue." 
The objection was sustained. It is significant to note at this point 
that before the witness was asked whether plaintiff filed a claim 
and whether he had collected money on the claim, the witness stated 
that the 1962 accident involved plaintiff's head, neck and shoulder, 
it in no way appeared to have involved the right foot. 

During final argument, defense counsel stated that plaintiff 
put his medical bills into evidence. Counsel then stated chat the 
jury would see that the bills were paid, not by plaintiff, but by 
someone else. An objection by plaintiffs counsel was again over- 
ruled. 



..7. 

A reviewing court will noc incerfere wit.h the amount of 
verdict detexmined oy a jury unless it appears chat an injustice has 
been dune;, ot tnat che amount of the verdict was the result of 
prejudice ot passion. Ward v. Chicago Transit A... Lhor i ty\ 52 111. App.2d 
172; Kinseii v. Gnicago Transit Authority, 27 111. App.2d 314. This 
IS true even where the jury was properly instructed on the question 
of damages. Corselio v. Warren, 51 111. App.Zd 367;; Wihr v. Bruno's 
Appliance Sales & Service,, 29 111, App.2d l45. 

The matters brought out by the defense relafive to the 1958 
and 1962 accidents were clearly improper under che circumstances. 
They were m no wa> connected up with the accident here in question, 
nor was any attempt made to show that they were used for impeacnment 

purposes. See Barrett v. Wallenberg, et al., 11 1 „ App„2d .-, 1st 

Dist.s 2d Div., Gen. No. 49531, filed September 28,, 1965. The use 
of this evidence, and the manner in which it was used cocld have no 
other effect than to give the jury the impression that plaintiff was 
"claim conscious." Indicative of this are the statements and questions 
ot defense counsel referred to aboves that plaintiff hired a lawyer and 
filed a lawsuit, that plaintiff failed to mention the 1962 accident 
on direct examination and that the filing of the i962 claim, and 
not Its amount J was the only matter m issue. 

Furthermore, the comment made by defense counsel in final 
argument -'that the jury would see that the m.edicai bills were paid, 
not' by plaintiff, but by someone else- -is clearly prejudicial ^ especial- 
ly in the light of the evidence of the 1958 and 1962 accidents. An 
inspection of the bills indicates they were paid Dy an insurance 
company. Not only does this make plaintiff appear to be attempting 
to secure a double recovery, but whether plaintiff has received 
compensation from a third party, whether by contract or as a gratuity. 



-8- 

has ao bearing on the defendant '' s oblLgaLvon to plaintiff for damages 

resulting from his negligence. Cooney v. Hixghes, 310 111. App . 371, 

378. 

On all of the evidence it clearly appears that the jury's 
verdict is inadequat ej even considering the pte-exi sting bone mass 
in plaintiff's foot and his failure to consult a doctor immediately 
after the foot was injured. 

A pre-existing condition does not bar recovery for damages 
arising out of che aggravation of that condition which is caused by 
the negligence of the defendant, Steele v. Brown,, 43 lil. App„2d 
293. While it is true that the pre-existing cox.dition must be 
considered when assessing damages, the unconcradic ted e\'idence shows 
that plaintiff had no trouble with the right fooc before the accident 
m questionj but rather had seen service in the army., was actively 
engaged in sports and coached sports teams. A party is also entitled 
to damages for any diseases arising out of the injury j such as 
plaintiff's foot infection and the arthritis in his ankle joint. 
Griswold v. Chicago Railways Co., 339 111. 94. The fdct that 
plaintiff required numerous operations to correi't the condition and 
also developed an infection due to a "surgical disaster." in no way 
bars recovery for the medical attention and surgery required^ it does 
not appear that plaintiff was in any way negligent in the selection 
of nis doctors. See Cline v. Kirchwehm Bros. Carcage Co., 42 111, App,2d 
85. 

With regard lo plaintiff's failure to consult a doctor 
immediately after injuring the foot^ it does not appear how much time 
plaintiff spent on the foot before seeing a doctor., nor is there any 
evidence as to the degree of aggravation resulting from the alleged 
subsequent use of the foot. Other than plaintiff's testimony that he 



was iiot able to work as long nor make as .Tiany calls alter the accident 
a^ before the accident, the only matter brought out at trial in this 
connection was Dr. Stamler's testimony that cojitlnced use of the 
foot would aggravate the injury, leaving it to conjeciv^re as to the 
degree of aggravation of the condition by the plalr-.t i. f £„ 

Finally, plaintiff raises as error the trial court's refusal 
to allow certain photographs of nis scars into evidence . Since there 
IS to be a new trial on the question of damages,, we think that it is 
within the discretion of the trial court, in che ^ight of all the 
evidence presented as to the operations,, whechet the photographs are to 
be admitted into evidence, Viilegas v„ Kercher., 11 II t„ App.2d 282o 

The judgmenc is reversed on the issue uf damages and the 

cause is remanded with directions for a new criai on the issue of 

damages . 

JUDGMENT REVERSED" IN PART AND 
CAUSE REMANDED WITH DIRECTIONS. 

BRYANT, J., and LYONS^ J,, concur. 



// 



50225 

PEOPLE OF THE STATE OF ILLINOIS 
Plaint if f -Appellee 5 

V. 

ALBERT GLENN JACKSON, 

Defendant -Appellant = 



(f4T.f\^^in) 



APPEAL FROM THE 

CIRCUIT COURT OF 

COOK COUNTS 



MR„ JUSTICE LYONS DELIVERED THE OPINION OF THE COURT: 

This is an appeal from a conviction by the court for the 
offense of attempted rape with sentence in the penitentiary for a period 
of froiri two to ten years, defeodaiit having waived a jury t;i.al. 

On Sep?:eaiber 29 <, 1962 s Mildred Hairis, age IS, answered the 
doorbell at her home located at 61.37 South Michigan Avenue j Chicago, 
Illinois, A man inquired about vacancies and requested permission to 
place a telephone call. Mildred's biotherj Danny, was home at the time. 
On the evening of October 2, 1962 ^ at abo;it 6:00 P.M. the same man made 
the same inquiries iyi Mildred ^ but was not admitted. Mildred's brother, 
Freddie, was home at this time. On October 3, 1962 5 between the hours 
of 2^45 P.M. and 3^00 PoM, Mildred again answered the doorbell and 
opened the door slightly. A man later identified as defendant forced his 
way in the house and put his hand ovex' Mildred's mouth and dragged her 
into the bedroom. He stabbed her in the chest, tore off her clothes and 
attempted to rape her. Mlldr-ed said her- brother v;as com.ing home and 
defendant left. Mildred sought the assistance of a neighbor and the 
police were called. She was taken to Billings Hospital where she stayed 
for two weeks. On all three occasions the man; later identified as 
defendant 5 wore a green iridescent jacket. 

Six weeks later; on November 12, 1962, Mildred while at home, 
received a telephone call from a man. Tlie caller asked her to have 
sexual intercourse with him and stated that he would be over in five 
minutes. He also stated that she would know him when she saw him. She 
accepted and told her brother and father. They surroxmded the house. 



-I- 

Defendant did nof appear. The next days November 13, 1962, Mildred 
received another telephone call. The caller said no one was home when 
he went by the day before and again said that he would be over in five 
minutes. Mildred called the police. After Ltd 5 call, a man telephoned 
again, stated thaC \\e. wacj Mr, Jackson and that he would meet her m 
front or S;.„ AabelmVs Church in fifteen minutes. She again called the 
police and a police trap was arranged, Mildred stood on the cornei of 
61st and Michigan in front of St, Anseliu's Church, An unmarked police 
car with policemen in:iide dressed in civilian clothes was parked neaiby. 
Defendant, in his auto, Iteading west on 61 st Street, approached Mildred, 
She signaled to the police and defendant drove away. He turned left on 
Indiana Avenue.^ drove north to 56rh Street, west on 56th Street, sovith 
through an <illey and parked ou 57th Street between Indiana and Michigan, 
The police follov^'ed and apprehended him as he walked rapidly from his 
i.:ar , He was brought to the Harris residence and identified by Mildred, 

At; the txla'i defendant testified that he was not the niitn who 
attempted the rape, thut he did not know complainant; that on September 
29 5 1962 s lie was working at his place of employment taking a quarterly 
inventory until 5^30 P„M, ; that on October 3, 1962, at the time of the 
alleged assault ^ he was at work; that on the date of his arrest he was 
driving south on Michigan, stopped at the corner of Michigan and 61st 
Street, and mAide a lett turn; that at the corner he noticed a young 
woman and said "Good evening"; that he drove to S/ch and Michigan, where 
he parked his automobile and was arrested. Most of defendant's testi- 
mony was corroborated by his plant manager and four company employees. 
Defendant's testimony as to the date of the assault was corroborated by 
testimony irom a fellqw employee and from the time cards of his place 
of employment, 

Detendant's theory of the case is that he was not proved 
guilty of attempted rape beyond a reasonable doubt. Defendant contends 
that J one, the People failed to prove that defendant was the person 



that comniitred the critne ; two, that there was a complete Lack of 
corroboratioci or the fact that there was an attempted rape; and three, 
that the findings of the trial court were not sustained by the evidence. 

There is ample evidence that defendant was positively 
identified as the man who attempted to rape Mildred Harris, Defendant's 
denial and bis alib; evidence presented an idenrif ication issue properly 
resolved by the trial judge. Mildred observed defendant on ttiree separate 
occasions within close range. On each occasion she was close enough to 
identify defendant. The description given by her was an adequate 
description of defendant. She stated that he was short, brown skinned, 
nicely built, with a long head, a heavy mustache, closely shaved hair j 
and between 23 and 30 years of age, Mildred testified that she recognized 
defendant's voice over the telephone on all three occasions when he called, 
She also testified that the caller identified himself as Mr. Jackson on 
the last of the three calls. 

Defendant claims that certain witnesses were not called by the 
People and suggests that their testimony would have contradicted that of 
complainant. Defendant's claim is invalid. The vjitnesses referred to 
were not shown to have relevant testimony on the identification issue. 
Further J they coiild only testify as to the victim's physical condition 
after the assaxiit. The fact that an assault took place was not disputed 
in the trial court. Mildred's father testified that he arrived home, 
found his daughter with no clothes on and bleeding from the left side of 
her chest. He fvitther testified that Mildred told him that she was raped. 
Any other evidence on the xindisputed issue of the attempt to rape would 
merely strengthen this testimony. 

We further conclude that the findings of the lower court were 
sustained by the evidence. The trial court found that defendant had a 
distinctive voice and thus inferred that Mildred could have identified 
the man over the telephone. The trial judge further found, after hearing 



Leat:i.mony regarding deteadant " s alibi defense, that he was at work on 

September 29 and Ocluber 3, 1962. that the time cards had been "doctored." 

There was a basis for such a finding from the evidence as the tune on the 

tiine cards had been written in ink on these days and not punched by the 

time clock. The credibility of the witnesses was a matter for the 

deter-mination of the trial, jxidge. fje ogJLe,^;^,„Bonex ? 28 111, 2d 305, 192 

N.E.vd 920 (1963); Peoiile,„v^^^Ma£k, 25 111. 2d 416, 185 N,E.2d 154 (1962). 

The trial court also found tliat defendant fled frcim the police and ttie 

fact that he die flee was additional corroboration of the complainant's 

testimony. The trial court stated ttiat defendant paid no attention to 

the siren and the finishing light on the police car. The trial court 

could have foxind that this action by defendant, prior to his arrest, 

amounted to flight aud that the testimony of the alibi witnesses for 

defendant was unreliable. 

Finally defendant contends that the court erred in limiting 

the cross -examination of the complainant. She testified on cross- 

exami nation as follows; 

"Q. An when tliis man made the phone call from your 
hallv/ay^ and you v/ere in the living room, where 
was Danii3'? 

a. He wa;5 sitting on the couch. 

Q, Did he see this man? 

A. Yea I gxiess'so, 

Q. Well, since September 2nd, 1962, did you ever 
ask Danny if he saw him? 

A. Yes. 

Q. Well J, what did he say? 

MR. TUITEs Objection. 

THE COURT; I will sustain the objection." 
The prosecutor's objection was apparently sustained by the 
court on the basis that it would constitute hearsay testimony. It is 
true, as defendant contends, that this answer would not violate the hear- 



_5-- 

say rule in that it was not offered to prove the truth of the matter 
stated, but only to show acknowledgment, on the part of the complain- 
ant ^ of the subject matter of the statement. She had just testified, 
"I guess my brother saw the man J' thereby implying that she had no 
knowledge whether or not her brother saw the man. The answer to the 
question propounded would rebut the inference of lack of any knowledge 
inherent in hex statement "I guess . . . ," 

We find, however, the act of the trial court in sustaining 
the objection did not prejudice defendant. Even if defense counsel was 
not given an indication whether or not the brother of the complainant 
had seen defendant, defense counsel could have obtained this information 
by the use oi a subpoenao 

We held 5 therefore, that defendant was proven guilty beyond 
a reasonable doubt and that any error committed by the trial court was 
not piejudiciai. We, therefore, affirm the judgment of the lower court. 

JUDGMENT AFFIRMED. 

BURKE, P,.j,, concurs 
BRYANT, J., dissenting: 

I am forced to dissent from the opinion of the majority in 
this case, I do not believe the appellant was proven guilty beyond a 
reasonable doubt. 

It i^ the People's theory that the man who committed the 
attempted rape was the same man who was at the complaining witness' home 
the Saturday before the attempt took place-~Saturday , September 29, 1962, 
Four men testified that the appellant was with them taking inventory 
that day. The time cards in evidence showed that on Saturday, September 
29, 1962, the appellant worked from early in the morning until either 
4:36 or .5:36 that afternoon. Apparently the card had been stamped 4:36 
originally and later had been written over to read 5:36, The Court below 
seemed to consider this strong evidence to indicate that the card had 



been altered to give the appellant an alibi. Mr. Ratchek, the appellant's 
employer, testified that he was the one who wrote over the card and said 
while he did xioL specifically remember why this was done, he believes 
that: alter the appellant punched out, it was discovered that something 
had been let: vminventoried and this required them staying later. 

We note that the complaining witness stated that the man who 
attacked her appeared at her apartment that Saturday between 2:00 and 
4:00 in the afternoon. Even if the stamped time were the correct time, 
it would have been impossible for the appellant to have been at her 
house that afternoon. 

The time card for Wednesday, October 3 shows the appellant 

began work at 7u.)0 in the morning and left work at 3:30 that afternoon. 

Botti the check in and check out times were written in rather than stamped 

by a time clock un that date. This was explained by Mr. Ratchek who 

said that he was ttie one who wrote in the times; 

"ooaFirst of all, it happens to be the first day of 
the iiev7 \./ork week when the time card would come out, 
cind it would be very possible for the clerk, which 
has happened in the past, to overlook a man in making 
out the time cards, and by the time the office area 
acttially opened up , the man would already have been 
at work about an hour and a half or so." 

There was attempted an impeachment of Mr. Ratchek to the effect j 
that he had told police officers he would sometimes write in the time on 
the company's pucich cards if for some reason the employee had to leave 
the plant tor personal reasons. It was never claimed that Mr. Ratchek 
said he did that in this case and Mr. Ratchek denies ever having said 
this at alio His testimony, taken with the testimony of three other men 
who remember being with the appellant the Saturday he was supposed to 
have been at the complaining witness' home, raises in my mind a reason- 
able doubt as to this man's being the assailant. 

Bernard H. Lohan, a police officer for Park Ridge, Illinois, 
testified that he worked at the same plant as did the appellant at the 



time he was supposed to have attacked this girl, and remembers working 
with the appellant daring the taking of the inventory. The Court below 
pointed out that this witness first stated that the inventory was taken 
in the latter part of August, but I feel that by reading the record as 
a whole, it is established that the inventory was taken on September 29, 
and that this witness was simply confused as to the date. The point was 
never siressed in his examination. This witness stated that he was 
working with the appellant in the taking of the inventory from seven in 
the morning until 5; 30 or 6:00 that evening. This testimony not only 
confirms the alibi of the appellant, but reinforces the testimony of Mr. 
Ratchek that appellant had worked until 5:36 that day. This witness 
said that the appellant was never outside his presence for more than 20 
minutes. 

Gerald Podgorski testified that he was working on inventory on 
September 29 ^ 1962 from 7:00 in the morning until 5:00 or 6:00 that 
night. He stated that he remembered the appellant taking inventory that 
day. Another worker, Francis Beedon, Jr. , testified he remembered the 
appellant working on the inventory the last Saturday in September, 1962, 
and that they worked until 5:00 or 6:00 in the evening. This witness 
said that the appellant could not have been gone for more than 10 minutes 
that day or he would have noticed it. 

This Court has often said that in weighing the testimony of 
witnesses, we will not interfere with the trial court unless his 
conclusions are against the manifest weight of the evidence. I feel 
that this is such a case. These men have no motive to perjure themselves 
to protect the appellant. The complaining witness testified she was 
attacked by the man who was at her apartment Saturday, September 29, 1962. 
Even disregarding the time card for the date the attack took place, the 
evidence is overwhelming that the appellant could not have been at her 
apartment that Saturday. 



The evicience shows that the appellant did not stop when the 
police car began following him November 13, 1962, but he claims he did 
not see Li\e ^car and scates he was going to visit his sister. He 
explaln.'j hts roundabout route by pointing out that in this vicinity 
there are many one vay streets so that it is necessary to do some 
doubling back to get to his sister's house. There was no testimony to 
contradict Lhi;-.„ Tne complaining witness testified repeatedly that the 
man who attacked her was wearing an iridescent green jacket with a 
patteiiio The appellant admits wearing a shiny green jacket but says 
that it has no pattern on it. There was no testimony to the contrary. 

I feel that there is a strong doubt as to the identification 
of this man as Lhe assailant. I vote to reverse the judgment of the 
Court below. 




\ 



iY 



No. 65-3 



(fTr^^^Tos) 




In The 



APPELLATE COURT OF ILLINOIS 



Third District 



A. D. 1965 




Abstract 



JAY J. KEITH, 

Plaintiff -Appellee, 

vs. 

MARVIN EVERTS and HELEN 
D. EVERTS, 

Defendants -Appellants . 



Appeal from the 
Circuit Court, 
Peoria County, 
Illinois. 



CORYN, J. 

On January 5, 1960, defendants, Marvin Everts and Helen Everts, 
husband and wife, entered a written agreement with Traders Realty Corporation, 
by plaintiff. Jay J. Keith, as its agent, authorizing it to solicit offers from the 
United States Post Office Department for the purchase or lease of a certain 
tract of land belonging to defendants and fronting on Glen Avenue in the City 
of Peoria. By this agreement defendants agreed to pay Traders Realty Corpora- 
tion a commission of six per cent for a sale to the government, and, in the 
event of a build-lease arrangement. Traders Realty Corporation was to be paid 
a commission of five per cent of the gross rent for the first year, and three per 
cent of the gross rent for the balance of the term. Concurrently with this 
agency transaction, defendants executed an option agreement submitted to them 
by Traders Realty Corporation, granting the United States Post Office Depart- 
ment a right, exercisable by December 31, 1960, to purchase the aforedescribed 
tract for $35, 000. 00. This option was never exercised. On April 14, 1960, 
the government notified the parties here that it was thereby releasing its 



option rights, that it intended to study its needs further, and that it would 
contact them later if it decided that defendants* property was adaptable to its 
needs. Thereafter, with the knowledge and cooperation of the defendants, the 
plaintiff showed defendants' property to several other prospective buyers or 
lessees. On February 28, 1962, after having negotiated directly with several 
of its representatives, defendants entered an agreement with the United States 
Post Office Department leasing the Glen Avenue tract, upon which they agreed 
to erect a building, for a term of twenty years at a gross annual rental of 
$18,300.00. On June 27, 1962, plaintiff. Jay J. Keith, as assignee of Traders 
Realty Corporation, filed a complaint in the Circuit Court for a commission 
due under the aforementioned listing contract. The complaint alleged that 
plaintiff, or his assignor, was the "procuring cause" of defendants' lease to 
the government, and demanded the sum of $11, 346. 00. On October 30, 1964, 
judgment was entered in favor of the plaintiff and against the defendants for 
the sum demanded. As the trier of facts, the court made findings in its judg- 
ment order as follows: (1) that plaintiff effected the initial contact between 
defendants and the ultimate lessee; (2) that from the time of this initial contact 
the government never terminated its interest in defendants' property; (3) that 
defendants never terminated plaintiff's agency (or the agency of his assignor); 
(4) that plaintiff (and his assignor) never abandoned efforts to induce the govern: 
ment to take defendants' property; (5) and that defendants refused to cooperate 
with the plaintiff (and his assignor) as their agent. Defendants have perfected 
this appeal from that judgment. 

In support of their prayer for reversal, defendants rely chiefly 
upon the case of Mammen v. Snodgrass , 13 111. App. 2d 538, to sustain their 
argument that the judgment of the trial court is contrary to the manifest weight 
of the evidence and the law. They argue that neither plaintiff nor his assignor 
were the procuring cause of the lease, their agency having been terminated or 
abandoned prior to the negotiation and execution of the lease, and that the 

-2- 



V \. 



lease was procured solely through their own efforts. Plaintiff contends that 
all questions of whether the written contract of employment was abandoned 
or otherwise terminated, as well as questions of who procured the lease, in- 
volve issues of fact, and that the trial court's findings on these matters cannot 
be disturbed where they are not palpably erroneous. Plaintiff relies upon the 
case of Chiagouris v. Continental Trailways, 50 111. App. 2d 196, to sustain 
his argument that the judgment of the trial court is correct. 

In Mammen v. Snodgrass , supra, the undisputed evidence clearly 
demonstrated that the plaintiff broker had abandoned the project. Before leaving 
on an extended tour of California and Washington, he advised an undisclosed 
prospect with whom he had previously negotiated unsuccessfully in regard to 
defendant's land, that if he were yet interested in defendant's farm, he should 
deal with defendant directly. The broker made no further efforts to sell the 
farm. Having invited the direct dealing between the prospect and owner, the 
owner's conduct in subsequently concluding a transaction with the prospect 
was not in bad faith toward the broker, who, accordingly, was held not the 
procuring cause of the sale, and therefore not entitled to a commission. In the 
case at bar, the evidence relating to the issue of abandonment is conflicting. 
I Although defendants testified that plaintiff did nothing after the year 1960 to 
sell or lease their land, plaintiff testified to continuous activity all through 
1961, and until the execution of the lease involved here. The trial judge, who 
was in a superior position to determine matters of credibility, accepted 
plaintiff 's evidence as the accurate version of what transpired, and nothing 
in this record suggests that this election was in error. "Although the testi- 
mony of the parties is the same as to some points, it varies as to crucial 
factual matters at issue. The trial judge believed the testimony of the plain- 
tiff, and unless such a decision was clearly contrary to the manifest weight 

of the evidence or was palpably and manifestly erroneous, we will be required 

I 
to use the facts so elicited as the basis for our inquiry into the conclusions of 

-3- 



law reached by the trial court. " Chiagouris v. Continental Trailways, 
50 m. App. 2d 196, 198. 

The evidence relating to the issue of whether plaintiff's agency 
was terminated by defendants prior to the negotiation and execution of the 
lease is also in dispute. Marvin Everts testified that he talked with plaintiff 
by telephone in September, 1960, and told plaintiff that he and his wife did 
not want him or Traders Realty Corporation to represent them any longer. 
Plaintiff denied any such communication and testified that he was in Europe ■ 
from August through November, 1960. Again, the trial court accepted 
plaintiff's version. 

Defendants further argue that irrespective of the issues of 
abandonment and termination of agency, the record shows that the lease would 
never have been consummated had the matter been left to plaintiff, and that 
plaintiff was not the procuring cause of the lease in any event, it having been 
procured solely by defendants own efforts. On this point the record shows 
that the plaintiff originally informed defendants of the possibility of a sale or 
lease to the Post Office Department, and supplied defendants with the pertinent 
information, advise, and assistance in submitting a bid for such sale or lease. 
After the original bid to the Post Office Department was rejected on April 14, 
1960, the plaintiff continued his efforts to sell or lease defendants' premises. 
When the Post Office Department advertised for lease bids in the Peoria Journal 
Star on March 8, 1961, the plaintiff, on March 10, 1961, wrote to Harold Lock, 
the Department's local real estate officer, with whom he had had continuous 
contact in respect to defendants' land, submitting two tracts, one being de- 
fendants', and inquired about the Department's preference of the two for the 
purpose of bids. He then advised defendants by letter that he had done this. 
At about the same time, defendants contacted Lock and thereafter negotiated 
directly with the Post Office Department for the lease. The defendants did not 



[ inform the plaintiff of this direct negotiation. Plaintiff had no further involve - 
\ ment in these negotiations as he had received a letter of reply from Lock on 
March 15, 1961, stating that he was informed that plaintiff was not the agent 
for the owners of the tracts listed in the letter of March 10, 1961, and that no 
opinion regarding preference would therefore be given. Defendants, in their 
testimony about the matter, took the position that they were free to negotiate 
directly, and without plaintiff's agency, because of the alleged abandonment 
and termination of said agency. 

On the basis of the evidence in the record, we would not be 
justified in concluding that the findings of the Circuit Court of Peoria County 
were contrary either to the law or the manifest weight of the evidence. 
Accordingly, the judgment of the Circuit Court of Peoria County is affirmed. 

Affirmed. 

\ ■ ■ 
Alloy, P.J. and Stouder, J. concur. - ^ 



I 



(32825—9-66) 14 



STATE OF ILLINOIS 



APPELLATE COURT (fTTi^^ 

AT AN APPELLATE COURT, for the Fourth Judicial District of the 
State of Illinois, sitting at Springfield: 

PRESENT 
HONORABLE EDWARD C. EBERSPACHER, P rf^siHiTig Judge 
HONORABLE JOSEPH H. GOLDENHERSH, .T„Hgf^ 

HONORABLE GEORGE J. MORAN, Judge 

Attest: ROBERT L. CONN, Clerk. 

BE IT REMEMBERED, that to-wit: On the 1 7 t h day 

nf November A D. 19__65_, there was filed in the office of 

the said Clerk of said Court an opinion of said Court, in words and 
figures following: 



■i \o -iv^r i.^foih ,: ([/-sol ©rfi ?d jmjOO 3TA.'" 



- I>. '. :^.Tii;..iq._:^^: _.-i__^..^?,£^ 



i £ 



AoftlfAi 



STATE OF ILLINOIS 
APPELLATE COURT 
?:'JRTH DISTRICT 

Ge::eral ::os. IO616 ani i:62S Consolidated 
PEOPLE 0? THE STATE 0? ILLINOIS, 
?laintiff-Ar- 



.^ee 



vs . 



XSHLE- HORI'TSTEIN and KAR7IN 

Defendants-Arre Hants 



Ci-X.fi,^3l^ 















Appeal from 
Circuit Court 
Sangamon County 



GCLTSNHERSH, J. 

Defendants, Xerle Horns te in and Marvin Horns te in, 
appeal from the judgment of the Circuit Court of Sangamon 
Co'ur.tv, entered on a jury verdict finding defendants guilty 
as charged in a five count indictment predicated upon 
Sec -ions 28-1 and 25-3 of the Criminal Code. The counts 
upon '.Thich defendants "were tried are summarized in an earlier 
opinion of this court wherein a prior conviction was reversed 
and the cause remanded. People v. Hornstein, 4-7 111. App. 2d 
36'?, 195 N.E. 2d 207. In accordance with the rule enunciated 
in People v. Duszkewycz, 27 HI. 2d 257, IB9 N.E. 2d 299, 
the trial court entered .judgment and imposed sentence on 
Count II, which charged defendants with knowingly permitting 
certain premises therein described to be used as a place of 
gambling, and further charged both defendants with being second 



cffeniers, setting ou~ an alleged prior conviction of each 
defendant for violai;ions of the gambling laws of Illinois. 

Although the appeal is before us on a single 
record and abstract, defendants are represented by separate 
counsel, and have filed separate briefs. The errors charged, 
and the contentions of the parties with regard thereto, 
>ri 11 be hereafoer enunierated and discussed to the extent 
necessarv to this opinion. 

Defendanos contend ohat the evidence fails to prove 
then guilt;- bevond a reasonable doubt as to the offense 
charged, and fails oo prove beyond a reasonable doubt that 
they are the same individuals shown to have been previously 
convicted of violations of Section 23-3 of the Criminal Code. 
Zne determination of these issues requires a review of the 
evidence. 

William Karcuzzo, called by the People, testified 
that he was an agent with the Criminal Section of the Illinois 
State Police. On February 1, 1963? he and two other men, 
Mike Clark and John Piggott, went to the M & M Pool Hall in 
Springfield. Mike Clark, one of the men with Marcuzzo, spoke 
to one, Carl, an employee at the M & M Pool Hall, and shortly 
thereafter defendant Merle Horns te in appeared. Clark asked 
Merle whether they could be admitted to 411 1/2 East Washington 
Street in Springfield to shoot craps. Marcuzzo, Clark, 



-2- 



defendant Merle Horns re in and Piggott went up a flight of 
stairs at il-ll 1 '2 East Washington Street where they were 
confronted with a gray metal door, equipped with a two-way 
mirror and a buzzer. Defendant Kerle Hornstein pushed the 
"buzzer and the group was permitted to enter. Merle asl-ied 
Xarouzzo if he wanted to play porier. Ke declined and Merle 
as>ed him if he wanted to shoot craps. He described the :■ 
poker table, the dice table, and the rooms in which they 
were situated. Shortly after the four men entered the room 
where the dice "able was located Merle left momentarily, 
and returned with a croupier stick. Two other men entered 
the room and the dice game was started. Marcuzzo rolled the 
dice and Kerle retrieved the dice with the croupier stick, 
and moved half of a billiard ball onto numbered cards on the 
table to mark the shooter's "point". Another man, not 
further identified, handled the money, paying out winnings 
and collecting losses. Marcuzzo was there for about two 
hours, and during a part of that time defendant Marvin 
Hornstein wielded the croupier stick and moved the billiard 
ball to mark the numbers. Marcuzzo pointed out both defendants, 

Marcuzzo stated that shortly after being admitted 
to the premises, defendant Merle Hornstein told him that if 
he wanted anything to eat or drink, to tell one of two girls, 
whom the witness identified as Pat Thomason and Rosemary Frye. 



-3- 



He also had a cor.versation vrith Merle Hornsteln about playing 
blackjack. '.fheri he left the premises Merle suggested that he 
come back sometime. As he left he saw Merle standing at the 
dice table counting money. He was not sure whether Marvin 
was present at that time. 

On February 9, lyi? Marcuzzo returned to the M & M 
Pool Hall. He talked with defendant Marvin Hornstein, told 
him he vrould like to shoot craps, whereupon Marvin told him 
the heat v:as on, the game was down, would probably be down 
for about two weeks, and would probably be moved to a new 
location. 

On February 15, 19^3 Marcuzzo again went to the 
M 3c y. Pool Hall. Both defendants were there. Marcuzzo told 
them he would like to shoot craps and Merle told him the game 
was down. He left, and returned about 45 minutes later with 
Captain Hall of the Illinois State Police, and the Sheriff of 
Sangamon County. The Sheriff told Merle they had a search 
warrant and Merle told him they could inspect the premises. 
They went to 411 1/2 East Washington, Merle unlocked the door, 
and Marcuzzo, the Sheriff, Captain Hall, and both defendants 
entered. The witness then identified various exhibits and 
identified a Miss Prisollla Thomason and John Piggott. 

Priscilla Ann Thomason, called by the People, 
testified that she knew both defendants, that she had gone to 



_i^_ 



411 l/''2 East Washington with her girl friend Pat Dooley, 
who was a blackjack dealer for Sam Greco, that between 
October, 1?62 and January, I963 she was in 411 1/2 East 
'.Vashington every night except for the last week in December 
and the firsr week in January, that she enjoyed herself 
there, that both defendants vfere usually present when she 
went there, that she saw Y^arcuzzo the night he was there, 
that defendant Merle Htrnstein sometimes gave her money to 
buy "cokes" and food for persons present there, that she 
sometimes served "customers" drinks from a refrigerator on 
the premises, that she usually left with defendant Merle 
Horns te in, that she had observed both defendants playing poker, 
that she had seen the People's Exhibits at 411 1/2 East 
Washington, that she had seen both defendants at a blackjack 
table but did not know what they were doing there, that she 
had seen a rack of silver dollars, cards and a box on the 
blackjack table, that Al Cooper had the keys to the premises, 
that Sam Greco counted the money from the blackjack game, she 
had seen Mike Clark there with Marcuzzo, that on occasion she 
answered the door and would ask "Merle or Pete or Sam Greco" 
if it was alright to admit the people. In response to the 
question, "But you would call Merle Hornstein or Marvin Hom- 
steln or Same Greco?", she replied, "Yes, sir". 

At the request of the People, and over defendants' 
objection, she was called as the Court's witness and V7as 



-5- 



interrogated as to certain testimony given at the first trial 
of this case. She was asked if she had stated that Merle, 
Fete and Sa^i had keys, and stated that if the record showed 
she said it, she must have said so. ■'•'■ 

Cn cross examination, she stated she had seen Kerle 
playing at the black 'ack table, but had never seen Marvin 
play dice or cards, she had never seen either defendant give 
orders, she had seen Al Cooper and Sam Greco operate the 
dice game, but had not seen either defendant do so. ■ .■ - 

James Christensen, Sheriff of Sangeunon County, 
testified that he accompanied Marcuzzo and others to the 
M & M Pool Hall on February 15, 19^3, that he saw both 
defendants there, that Captain Hall spoke to defendant Merle 
Hornstein, and that Merle unlocked the doors at ^11 1/2 East 
Washington. He identified the People's Exhibits, being the 
front door at ^^11 1/2, the billiard table and a poker table, 
as having been removed from ^■ll 1/2 East Washington. 

Sergeant Albert J. Bertagnolli of the State Police 
testified that he was present on February 15, 1963* that both 
defendants were there, that defendant Merle Hornstein unlocked 
the door at ^11 1/2 East Washington, that they searched the 
premises, found and removed the People's Exhibits, that no 
gambling was in progress at the premises at that time. 



-6- 



Cap:;ain Williain Hall of the State Police testified 
that he saw the defendants on the night of February 15, 19^3 
in the M & K Pool Hall, he told them he had a warrant to 
search the premises at ^(-11 1/2 East Washington, that if they 
were not admitted to make the search it would be necessary 
to break in; defendant yierle Horns te in unlocked the door, and 
the witness and others with him entered the premises. He 
identified the People's Exhibits as having been found at, 
and removed from, the premises. 

After careful consideration of the record we hold 
that the evidence fails to prove defendant Marvin Hornstein 
guilty beyond a reasonable doubt. Section 25-3 provides 
tiiat a person who knowingly permits gambling in premises 
ovmed, occupied or controlled by him, is guilty of an offense. 
The evidence fails to show that this defendant owned, occupied' 
or controlled the premises in question. The People rely 
upon People v. Brickey, 332 111. App. 370 and Bobbins v. The 
People, 95 111. 175 J as authority that the evidence here is 
sufficient to sustain the conviction, but an examination of 
the opinions in those cases reveals clearly distinguishable 
fact situations. In Brickey, a witness testified that he had 
seen the defendant sell dice, "cut the game", "run the box", 
and "use the rake". He also testified that the defendant had 
told him he would see that he was reimbursed for his losses. 



-7- 



In Robbins, a witness testified he had seen the defendant 
dealing cards, and T\-hen disputes arose during the game, 
settled then. ■■ ■ ' 

In the case at bar, the most that the evidence will 
support is "hat defendant Xarvin Hornstein used the croupier 
sticri briefly during Merle's absence, and assuming, although 
there is no testimonv to that effect, that Marvin and Pete 
are one and the same person, that on occasion Miss Thomason 
as.red him whether certain individuals could be admitted to the 
premises. This court has the duty to examine the evidence to 
determine whether guilt has been established beyond a reasonable 
doubt, and since we cannot say that no reasonable doubt of 
defendant Marvin Horns te in 's guilt remains, or that every 
reasonable hypothesis inconsistent with innocence is excluded, 
the "Judgment as to this defendant must be reversed. The People 
v. 3utler, 28 111. 2d 33, I90 N.E. 2d 8OO. In view of the 
conclusion reached we need not consider the other contentions 
of this defendant. 

As to the defendant Merle Hornstein, the evidence is 
sufficient to sustain the conviotion of the offense allegedly 
committed on February 1, I963. People v. Brickey, 332 111. App. 
370. There remain for consideration other errors relied upon 
by this defendant. 



-8- 



Defendant charges that he was entrapped by the 
People's witness, Karc-izzo-, and under the proYisions of 
Section 7-12 of the Criminal Code is not guilty of the offense 
charged. This contention is without merit since the evidence 
shows conclusivelv that the officer did no more than to afford 
him an opportunity zo commit an offense he was ready and 
willing to commit. People y. Clay, 32 111. 2d 6o3, 210 K.E. 2d 

Defendant contends that the People failed to proYe 
beyond a reasonable doubt that he is the same individual who 
on October 25, 19^1 was convicted of an offense committed on 
October 19, 1961. Failure to establish this fact was the 
basis for the reversal of the earlier conviction in this case. 
People V. Hornstein, ^? 111. App. 2d 3^^ , 198 N.E. 2d 20?. 

The record shows that the People offered, and the 
Coiirt admitted, an exhibit described as "the common law record" 
of the conviction of defendant Merle Hornstein, of the offense 
of permitting premises described as 413 East Washington Street 
in Springfield to be used or occupied for the purpose of 
illegal gambling. 

The People called Robert Goby, who testified that he 
was an investigator for the office of the State's Attorney of 
Sangamon County and had been so employed for 6 years. He 
stated he had known the defendant Merle Hornstein "for quite a 
while". He was asked to examine the exhibit and was then asked. 



■9- 



"Kr. C-oby, is the defeniant, Merle Horns te in, the same 
person that is named Ir. People's Exhibit No. 9, if you know?" 
Ke replied, "1 only >r.o>: one Merle Horns te in". After 
ob.-ection and considerable colloquy between counsel the 
question was repeated and the witness said, "Well, that court 
record named Merle ?I:^rns~ein, and this is the Merle Hornstein 
I l-mcw". After objection and more exchanges between counsel, 
he >ras asked, "Is the defendant, Merle Hjrnsteln, the same 
person named in Exhibit P?" He answered, "As far as I Imow, 
he is, Mr. Hrllis." The court sustained an objection to this 
answer but no ruling was made on defendant's motion that the 
answer be stricken. The witness was asked again, "Is the 
defendant, Merle Hornstein, the same person named in People's 
Exhibit Mo. 9?" and he answered, "To the best of my knowledge, 
he is." 

Our Supreme Court has stated clearly, unequivocally 
and repeatedly, that the fact of establishing the identity of 
the defendant with the former conYictlon must be proved with 
the same certainty which the law requires as to the substantive 
offense. People v. Casey, 399 HI. 37^, 77 N.E. 2d 812; 
People V. Stewart, 23 111. 2d l6l, 177 N.E. 2d 237. If this ' 
were a matter of identification of the defendant to prove the 
substantive offense, the identification by one witness would 
not suffice unless it were positive. The People v. Pride, 
16 111. 2d 82, The People v. Soldat, 32 111. 2d 478, 20? N.E. 2d 
4^9. The testimony of Goby does not meet the requirement that 



-1 o 



such identification be positive , and even aided by the 
statutory provision tha" ~he record is prima facie evidence 
of the former convio'ion, the evidence falls short of the 
requisite proof beyond a reasonable doubt;. As stated in ::he 
prior opinion in this case, we perceive of no reason why the 
required proof was not forthcoming. 

Plaving determined that the evidence sustains the 
convicoion for the offense committed on February 1, 19^3? and 
that it does not sustain the judgment finding defendant guilty 
as a second offender, we apply the provisions of Section 
121-5 (b) of the Code of Criminal Procedure and reverse the 
cscnviction of the defendant Merle Hornstein as a second 
offender and remand the case to the Circuit Court of Sangamon 
County, with directions to enter judgment of guilty, and for 
further proceedings within the purview of the Criminal Code as 
applicable to a conviction for a first offense under 
Section 28-3. 

Judgment reversed as to 
defendant Marvin Hornstein. 

Judgment reversed and remanded 
with directions as to defendant 
Merle Hornstein. 

E5EHSPACHER, P.J. and MORAN, J. concur. 



-11- 



\ /^TT^^^TvT) 



1. 

APPEAL FROM 

CIRCUIT COURT 

OF COOK COUNTY 




50115 

WESTLAKE FINANCE COMPANY, a 
corporation, 

Plaintiff -Appellant, 



V. 



ALEX C. MONTGOMERY, AJAX SERVICE 
STATION, AJAX STORAGE GARAGE and 
JOHN DOE, 

Defendants-Appellees <, 



MR. JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT: 

This is an appeal from an order entered August 3, 196^ in the 
Circuit Court of Cook County^ The parties to this appeal have entered 
into a stipulation of facts which we now set out in full. 

"On or about May 25 ^ 1963 j one Alex C. Montgomery purchased a 
1958 Mercury two door hardtop automobile from, Chicago-Homan Motors, Inco 
The purchase price was $800.00. To this was added $472<,80 to cover 
collision insurance and finance charges, making a total of $12/2,&Oo 
Montgomery made a down payment of §200„00 in cash„ and the balance was 
to be paid in eighteen monthly installments of $59.60 each, Montgomery 
signed a Retail Installment Contract covering the purchase, and this 
contract was assigned to Plaintiff, Westlake Finance Company. 

"Title to the car was issued to Montgomery by the Secretary of 
State of Illinois on June 13, 1963, the Certificate of Title showing a 
lien in favor of said Westlake Finance Company. Montgomery made the 
first payment on the contract. 

"Early in July, 1963, Montgomery, who nad possession of the 
car, brought it to Ajax Garages, the defendantj for repairs to the engine 
and transmission. The repairs were completed i:'n or about July 15, 1963. 
Montgomery was notified to pick up the car and was given a bill for the 
repairs in the amount of $322.31. Montgomery was also informed that Ajax 
Garages would retain the car until the bill was paid, and that there 
would be a storage charge of $1.00 per day. Montgomery made repeated 
promises to pay the bill and pick up the car. This he failed to do., and 



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■4 



-2- 

the car remained in the possession of defendant, Ajax Garages- 

"Montgomery maae no farther payments to Westlake Finance 
Company, under the Retail Installment Contract ^ and there remained due 
a balance of $1016.75. Plaintiff filed a replevin suit on or about 
December 6, 1963, and pursuant to the writ of replevin the car, then in 
the possession of Ajax Garages „ was seized bv tne Bailiff of the 
Municipal Court of Chicago and deliverea lo plaintiff. The car wai sub- 
sequently sold by plaintiff to a tnnd partv. 

"At the time of the seizure by the Bailiff, there was due 
and owing to the defendant Ajax Garages the sum of $482.31^ §150o00 for 
storage and $322,31 for repairs- The plaintiff, Westlake Finance 
Company and the defendant, Ajax Garages agreed that these charges were 
fair and reasonable." 

The basic claim of the appellant m this appeal is that under 
Illinois law, the reservation of title in a conditional sales contract 
creates a lien superior to a subsequent artisan s lien. In support of 
this proposition, the appellant urges Chapter 82^ sec, 40, 43, 111, Rev, 
Stat., 1963. Sec. 40 provides for trie creation of an artisan's lien 
where a person, firm or corporation has expended labor, skill or materials 
on a chattel. Sec 43 provideo". 

"The lien created bv this Act shall be subject to the 
lien of any bona fide chattel mortgage upon the same chattel, 
recorded prior to the commencement of any lien herein created,, 
but said lien herein created shall be in addition to, and shall 
not exclude, any lien now exibting at cumirion law, and an> lien 
existing by virtue of -An Act concerning liens for labor,, 
services, skilly or materials expended upon chattels enacted 
by the sixty- second generai. assembly," 

One thing which must be taken note of immediately is that the 
appellant in this cause did not hold a chattel mortgage on the automobile 
in question. The appellant was a conditional vendor and was not protecced 
by the express provisions of sec, 43, Appellant's reliance on this 
section would, therefore, seem to be misplaced. 

Decisions construing sec. ^0 of the Act, however, have held 



Ui 



-3- 

that the holder in due coarse of a condicional sales contract hai a 

lien superior to that of a garage ownex for repairing and storing the 

automobile. Such was the holding in the recent case of General Motors 

Acceptance Corp . v, Allen, 52 IjlI. App»2ci 1\^ , 201 NoE„2d 7^7 u96^) 

and cases there cited. What appeli.ant fails to note in its brief,, 

however, is that these cases aecided Lhe law as it was prior lq the 

passage of the Uniform Commercial Code wnich v;ent into effect in this 

State July 1, 1962- -before any of the acts giving rise to the aispute 

occurred. Sec. 9-310 of the Code states:; 

"When a person in the ordinary coij-rse of his bu^inesi 
furnished services or materiai.s with respect to goodr si-bject 
to a security interest, a lien upon goods m trie possession of 
such person given by statute or r.ij.e of law for such mater lai- 
or services takes priority over a perfected security interest 
unless the lien is statutory and the statute expressly provides 
otherwise. " 




This section clearly gives a superior lien to the defendant- 
appellee."^ Ajax Garages furnished macenal- and services m the ordinary 
course of business^ and the automobile was in. its possession when this 
action was instituted. While the Code ipecif icallv gives the State 
Legislature the option to change the priority of liens set forth in this 
section, the Legislature of this State did not do so until earlier this 
year when it redrafted Chapter 82, sec. ^3 to read, 

"The lien created by this Act sha^-l be subject to the 
lien of any bona fide security interest as defined in the 
- Uniform Commercial Code upon the same cnattel recorded prior 
to the commencing of any lien herein cieatedj but the lien 
herein created shall be in aadition to, and not exclude, any 
lien now existing at common law, and any lien existing by 
virtue of 'An Act concerning liens for labor, services, skill 
or materials expended upon chatters. " 

That section went into effect July 1, 1965 » It ccin have no application 

to the case at bar, 

i.. The appellant urges on appear that it perfected its lien by 

having it recorded on the certificate of titie as required b> the 

Illinois Motor Vehicle Law, Chapter 95 1/2, sec. 3-202 1^.1. Rev. Stat. 

(1963). This section, of course^ deals with the perfecting of security 




-4- 

interest, and is not controj-ling on Lhe question of which liens are 
superior to others. The appellant has also cited many cases which 
were decided on the law prior to the Goaeo They are not applicable to 
the case at bar. 

At the time the sale of the automobile was made ana at the 
time this cause was tried^ Lhe Unifonn Commercial Code controlled Ltie 
matter and the Legislature had not yet acted to make anv changes in 
the priorities set forth in se^o 9 310 of Lhe Cc»cie. The CourL be.Low 
correctly decided that the lien of Ajax Garages was superior to Lhe 
lien of West lake Finance Company « The judgment is affirtned, 

JUDGMENT AFFIRMED. 

BURKE, P.J., and LYONS, J., concur o 



49892 

ALFRED TABRON, 

Plaintiff -Appellee, 
vs. 
ROY Wo PLEASANT, at alo, 

Defendants -Appellants , 



APPEAL FROM THE 
CIRCUIT COURT OF 
COOK COUNTY. 




MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT. 

Defendant Agnes Daniels has appealed from a judgment for 
$1100 entered against her on plaintiff's complaint for libel, 
r^s^^^x^'^^laintif f has failed to comply with Rule 5 (m) of this 
court, in that he has filed no brief and the time for filing 
same has long since expired. In this circumstance it is un- 
necessary for us fully to discuss the case in the light it 
appears from a study of defendant's brief and abstract„ We 
are warranted in reversing the judgment without further con- 
sideration, 541 Briar Place Corp. v. Harman „ 46 111. App, 2d 1; 

Ogradnev v. Dal ey. 111, App. 2d , 208 N.E. 2d 323; 

Wright V. Chicago Transit Authority . 43 III, App. 2d 408; 
C.I,T, Corp, V, Bla ckwell . 281 111. App, 504, 

Moreover, review of the record and arguments presented to 
us, though ex parte, prompts us to conclude that plaintiff's 
failure to contest the appeal is tantamount to confession of 
error. 541 Briar Place Corp. v, Harman . 46 111. App. 2d 1. 

The judgment of the Circuit Court as to defendant Agnes 
Daniels is reversed with judgment here in her favor. 

REVERSED. 

Mccormick, P.J., and DRUCKER, J., concur. 



Publish Abstract Only, 



:' 



ji 



;■• ■.<.,.. ^ 



' i: ' ••(} 



49848 

CHARLES LANTRY, Trustee under Trust 
Agreement dated June 1, 196O and 
known as Trust No. BLW-1, 



Plaintiff -Appellant, 



V. 



APPEAL FROM THE 

CIRCUIT COURT OF 

COOK COUNTY. 




VILLAGE OF HOMEWOOD, a municipal 
corporation, 

Defendant-Appellee . 

MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT: 

This is a zoning case in which plaintiff takes an appeal from 
a judgment dismissing plaintiff's complaint which asked for declarations 
that a zoning classification be declared void, and that the action of 
defendant's Board of Trustees, in denying a variation, was arbitrary 
and capricious. 

Plaintiff seeks to erect a medical center on the property 
involved, which is located at the southwest corner of the Intersection 
of Dixie Highway and Heather Street in the Village of Homewood. It / 
measures approximately 321 feet from north to south and 213 feet from 
east to west, and contains approximately 68,373 square feet. On the 
northern portion of the property is a single family frame residence 
approximately 50 years old. On the southern portion is a dwelling 
approximately 12 years old. The balance of the property is unimproved. 

Dixie Highway is a heavily traveled arterial thoroughfare 
characterized by heavy and fast moving traffic of both a local and 
regional character. The subject property is classified under the zoning 
ordinance of Homewood as R-2 (Single Family Residence), which permits 
only single family homes and related public uses, such as schools and 
playgrounds. This zoning classification extends south to the center of 
the block. The south half of the block is classified as B-3 (Service 
Business). No apparent break exists between the R-2 and B-3 zoning 
districts on the west side of Dixie Highway as l86th Street does not run 
west of Dixie Highway. Within the B-3 area immediately south of the 



f 



-2- 

subject property and north of 187th Street on the west side of Dixie 
Highway, are located, from north to south, the following uses: a 
medical building, 3 residences, an office structure, a thrift shop, a 
Christian Science office, a dentist's office, a doctor's office, a 
bakery, a beauty shop, a men's wear shop, a meat market and a gas 
station with auxiliary parking facilities. Across the street from the 
subject property on the east side of the street and north of l86th 
Street are located a doctor's office and a church; south of the last 
described property and south of l86th Street are located a drug store, 
a real estate office, a restaurant, a hardware store, barber shop, 
children's apparel shop, a delicatessen and a dime store. Immediately 
south of the last described property and south of l87th Street are 
located an apparel shop, a camera shop, a liquor store, a hobby shop, 
and an electrical appliance store and grocery store. 

Thus, all the properties described above on the west side of 
Dixie Highway south of l86th Street (if extended westward) are zoned 
under the Homewood Zoning Ordinance as B-3 (Service Business) and those 
north of l86th Street (if extended westward) are zoned R-2 (Single 
Family residence). All properties described above, on the east side of 
Dixie Highway between l86th Street and Terrace Road, are zoned B-2 
(Community Business). Single family residences, however, exist both 
east and west of Dixie Highway. 

The Zoning Ordinance of Homewood contains provisions for two 
types of variation. The first, which is the one involved here, is the 
Zoning Variation, generally referred to as a "Use Variation," by which 
a use can be permitted in a district where the classification would 
otherwise exclude it. An example of such variation is the medical center 
which is located in a single-family residence district immediately south 
of and adjacent to the subject property. Where such a variation is 
utilized, a hearing is required by the Zoning Board of Appeals, which 
then recommends allowance or disallowance to the Village Board of Trustees, 



-3- 

which in turn has the ultimate power to grant or deny the variation. 
This method was used by plaintiff in his effort to obtain a variation 
to construct the proposed medical center. 

On September 26, I962 plaintiff filed with the Homewood Zoning 
Board of Appeals a petition seeking a variation of the zoning ordinance 
as applicable to the subject property, so as to permit erection and 
operation of a Medical Center. The proposed Medical Center would cover 
approximately 85OO square feet, or 12^ of the land area. The structure 
would be one story in height, of brick and glass construction and fully 
air conditioned. It is designed for use by 8 to 12 doctors and would 
contain suites with treatment rooms, reception areas, laboratories, 
lavatories and storage space. Parking would be provided in accordance 
with Village Ordinance requirements. 

The Zoning Board of Appeals conducted hearings on the petition 
on November 14, 1962 and November 29 > 1962, and recommended that the 
variation as proposed be granted, subject to certain conditions not 
pertinent to this opinion, by a vote of four to two. On December 11, 
1962, the Homewood Village Board of Trustees disapproved the recommen- 
dation of the Zoning Board of Appeals and denied the variation petition 
by a vote of six to one. 

Plaintiff filed a two count complaint for declaratory 
judgment. Count One prays for an order declaring the residential 
classification of the subject property void on constitutional and 
statutory grounds insofar as it prevents the erection of a medical center 
on the subject property. Count Two, in the alternative, prays for a 
declaration that the Village Board of Trustees failed to comply with 
the applicable state statutes and village ordinances in not granting a 
variation of the zoning ordinance to permit erection of a medical center, 
as recommended in the report of the Zoning Board of Appeals. 

At the trial, plaintiff's expert witnesses were a City Planner 
and two Appraisers. The City Planner testified that the proposed use 



i 



:i 



as a medical center was the highest and best use of the property, 
that the use, if allowed, would have no detrimental impact upon the 
adjacent properties, but as proposed would have a beneficial effect on 
the adjacent properties, and that the allowance of the use as 
recommended by the Zoning Board of Appeals, would be consistent with 
good city planning, . 

The Appraisers testified that as presently zoned the land 
alone was worth between $24,000 and $29,000, but that if the proposed 
medical center was allowed the property would be worth approximately 
$52,000 to $56,000. These witnesses also testified that the proposed 
use would have no detrimental impact upon the adjacent properties, but 
rather would have a stabilizing and beneficial effect. 

Defendant introduced as a witness a member of the Homewood 
Police Force, who testified that traffic problems might result if the 
proposed use was permitted. Also testifying for defendant was the 
Building Commissioner and two residents, living in the immediate area, 
who opposed the proposed use. 

Expert witnesses for defendant were likewise a City Planner 
and an Appraiser, The City Planner testified that in his opinion the 
proposed use was not consistent with the public welfare, was inconsistent 
with long-range planning goals of the Village and would have a 
detrimental effect on the adjacent residential properties. On cross- 
examination, however, he admitted that the medical center building, 
adjacent to the proposed medical center, would have a detrimental effect 
on the subject property, if said subject property was developed for 
residential purposes. 

Defendant's Appraiser witness testified to values, as 
presently zoned and as zoned so as to permit the proposed use. He 
testified that in his opinion the proposed use would have a depreciating 
effect on properties immediately adjacent to and across from the subject 



-5- 

property, but conceded that the medical use Immediately to the south 
had an Impact on the subject property insofar as the suitability of 
the subject property for single family development was concerned. 

The judgment entered by the trial court in favor of defendant 
dismissing the complaint is based on eight findings of fact, to-wit: 

1. The property in question is located on the southwest 
corner of Dixie Highway and Heather Road in the Village 
of Homewood, Cook County, Illinois; it measures 321 feet 
on Dixie Highway and 213 on Heather Road; and it is 
presently improved with two frame single-family dwellings, 

2. Since 1929, the effective date of the Village's initial 
Zone Ordinance, the property in question has been zoned 
for single-family residences. 

3. The property could be subdivided, under present Village 
requirements, into five or six residential lots, 

k» The plaintiff purchased the property in I96O and was 
aware at that time that the applicable zoning was for 
single-family residences. 

5. There was no evidence, other than the U. S, Documentary 
(Revenue) Stamps affixed to the two Deeds in Trust, 
concerning the purchase price paid by the plaintiff for 
the property, 

6, The character of the neighborhood in which this property 
is located is residential. 

7. The plaintiff's proposed use of the subject property is 
for a medical clinic designed for 8 to 12 doctors' suites, 
with parking facilities for approximately 90 vehicles. 

8, The plaintiff has not established that the action of the 
defendant herein complained of has been arbitrary, capricious, 
confiscatory or discriminatory and the court does further 
find and declare that the Zoning Ordinance of the Village of 
Homewood is, as applied to the plaintiff herein and the 
subject property, in all respects valid and lawful. 

Plaintiff's theory of the case is that the subject property 

is characterized by adjacent uses, particularly the medical centers 

previously erected pursuant to variations granted in the single-family 

residence districts located in the immediate vicinity of the subject 

property; that the limitations imposed upon the subject property, insofar 

as they prohibit the construction of a medical center, are not in 

furtherance of the public health, safety, morals, comfort and general 

welfare of the community and are therefore void; and in the alternative, 



-6- 

that the variations as sought by plaintiff should be granted by the 
Village Board of Trustees in that their action in refusing to grant 
such variations was arbitrary and capricious. 

Defendant's theory of the case is that the zoning ordinance 
prohibiting plaintiff's proposed commercial use is valid and reasonable 
and that plaintiff failed to demonstrate by affirmative evidence that 
the action by the Village in failing to grant the variation, was 
arbitrary or capricious. ■ 

At the outset we must dispose of defendant's contention that 
plaintiff's efforts to obtain a variation does not satisfy the require- 
ment that he exhaust his local remedies before seeking judicial relief. 
Bright V. City of Evanston . 10 111. 2d I78, I39 N.E.2d 270 (1956). 
Defendant asserts that plaintiff must again go back to the Board of 
Trustees of the municipality and request an amendment to the ordinance 
with a hearing before the same Zoning Board of Appeals and ultimate 
allowance or disallowance by the same Board of Trustees, The trial 
court rejected this contention and we affirm that position. . 

The basic Illinois case setting forth the exhaustion of 

remedy doctrine, was Bright v. City of Evanston, supra . In that case 

the plaintiff proposed the erection of an apartment structure in a 

Single-Family Residence District, The Zoning Ordinance of Evanston 

permitted use variations. As in the present case, the Zoning Board of 

Appeals was the hearing body, having only advisory jurisdiction with 

the final power to grant or deny the variation in the corporate authority. 

There, as here, an amendment to the Ordinance was an alternative method 

of relief. The Supreme Court held, however, that until the plaintiff 

availed himself of the use variation method, his efforts at judicial 

relief were premature. The court stated at page I86: 

In the case at bar the zoning ordinance has made provision 
for variation in particular cases by application to the board of 
appeals, which is empowered to make recommendations to the city 
council with respect thereto. The plaintiff has not seen fit to 
apply for such a variation. He does not complain of the zoning 
ordinance as a whole, but claims only that the classification of 
his lot for residential rather than commercial uses Infringes his 



-7- . . 

constitutional rights. Under such circumstances he should 
apply In the first Instance to the board of appeals, and if 
unsuccessful there he can seek Judicial relief. His action 
for declaratory Judgment without first exhausting his 
administrative remedies will not lie. 

There the variation application was deemed an administrative remedy 

even though ultimate allowance was within the province of the legislative 

body. The same doctrine was recognized in Bank of Lyons v. County of 

Cook , 13 111. 2d 493. 150 N.E.2d 97 (1958), where failure to seek a use 

variation precluded Judicial relief, notwithstanding the alternate 

available remedy of amendment. 

The foregoing cases established the Supreme Court's precept 

that no Justiciable controversy arises until the applicant has sought 

and been denied relief on the local level more than once. Subsequently, 

however, the court stated in Herman v. Village of Hillside , 15 111. 2d 

396, 155 N.E.2d 47 (1958), at page 408: 

. . . Plaintiff filed an application for amendment of ' 
the zoning ordinance requesting reclassification, public 
hearing was had before the board of appeals and the corporate 
authorities adopted a resolution refusing to amend. The same 
board of appeals would have had Jurisdiction over a variation, 
and it is unreasonable to assume that it would reverse itself 
and grant practically the same relief. To insist on the 
additional useless step would merely give lip service to a 
technicality and thereby increase costs and delay the 
administration of Justice, which is the very thing we are 
trying to avoid. The action here taken was a reasonable 
equivalent within the meaning and spirit of the cases above 
cited. 

Thus we conclude plaintiff has fully satisfied the doctrine requiring 

resort to local remedies by seeking a method of relief provided in the 

Zoning Ordinance. See Wiercioch v. Village of Niles , 27 111. 2d 363, 

189 N.E.2d 278 (1963), and Van Laten v. City of Chicago . 28 111. 2d 157. 

190 N.E.2d 717 (1963) . 

Plaintiff's first contention is that the zoning classification 
of the subject site as a single-family residence district is unreasonable 
and void Insofar as it prevents the erection and operation of a medical 
center. The Circuit Court has the power to adjudge a zoning classification 
void insofar as it prohibits a proposed use. Sinclair Pipe Line v . 



i 



-8- 

Villase of Rlchton Park . 19 111. 2d 370, 16? N.E.2d 4o6 (1960). We 
proceed with an examination of the evidence. The basic guide lines 
for determining the validity of a zoning ordinance have frequently 
been set forth. In LaSalle National Bank v. County of Cook , 12 111, 2d 
40, 145 N,E.2d 65 (1957) the court stated at page 46: 

Even though the validity of each zoning ordinance must 
be determined on its own facts and circumstances ( Gait v . 
County of Cook , 405 HI. 396; People ex rel Alco Deree Co . 
V. City of Chicago . 2 111. 2d 350) yet an examination of 
numerous cases discloses that among the facts which may be 
taken into consideration in determining validity of an 
ordinance are the following: (1) The existing uses and 
zoning of nearby property, ( Krom v. City of ElmJiurst . 8 111. 
2d 104; Forbes v. Hubbard . 348 111. 166; Langguth v.' Village 
of Mount Prospect . 5 111. 2d 49), (2) the extent to which 
property values are diminished by the particular zoning 
restrictions, ( Midland Electric Coal Corp. v. County of Knox . 
1 111. 2d 200, 214; Offner Electronics. Inc. v. Gerhai'dt ^ 
398 111. 265; People ex rel. Klrby v. City of Rockford . 363 
111. 531 ; Ehrlich V. Village of Wllmette . 36I 111. 213). (3) 
the extent to which the destruction of property values of 
plaintiff promotes the health, safety, morals or general 
welfare of the public, ( Chicago Title and Trust Co, v. Village 
of Franklin Park . 4 111. 2d 304. 306; Krom v. City of Elmhurst . 
8 111. 2d 104, 115; Evanston Best & Co. v. Goodman . 369 111. 
207), (4) the relative gain to the public as compared to the 
hardship imposed upon the individual property owner, ( Hannifin 
Corp. V. City of Berwyn , 1 111. 2d 28, 36), (5) the suitability 
of the subject property for the zoned purposes (in this cause 
residences on 10,000 square feet), ( Langguth v. Village of 
Mount Prospect . 5 111. 2d 49, 54; Petropoulos v. City of Chicago . 
5 111. 2d 270, 274), and (6) the length of time the property has 
been vacant as zoned considered in the context of land development 
in the area in the vicinity of the subject property. Krom v . 
City of Elmhurst . 8 111. 2d 104, 111-113; Chicago Title & Trust 
Co. V. Village of Franklin Park . 4 111. 2d 304; Petropoulos v . 
City of Chicago . 5 HI. 2d 270, 274 

No one factor is controlling. It is not the mere loss In 
value alone that is significant, but the fact that the public 
welfare does not require the restriction and resulting loss. 
When it is shown that no reasonable basis of public welfare 
requires the limitation or restriction and resulting loss, the 
ordinance fails and the presumption of validity is dissipated, 
Krom V. City of Elmhurst . 8 111. 2d 104.) The law does not 
require that the subject property be totally unsuitable for the 
purpose classified but it is sufficient that a substantial 
decrease in value results from a classification bearing no 
substantial relation to the public welfare. 

There was evidence introduced, that, other than the three 

medical centers and a parking lot, the character of the neighborhood in 

the immediate area of the subject property is residential. The trial 

court found this to be true. There was also evidence Introduced that 



-9- ..■.■;,, 

plaintiff would get a substantial return on his original investment if 
the property was subdivided for residential purposes. Furthermore, there 
was evidence introduced that a traffic problem might arise in the 
immediate area. 

Plaintiff's contention, that because there are other medical 
centers in the immediate area the proposed medical center should be 
allowed, is not controlling. The medical center proposed by plaintiff 
would be considerably larger than the medical centers in the surrounding 
area in that the proposed medical center would have space for 8 to 12 
doctors' suites, containing treatment rooms, offices, assistant's 
stations, reception areas, waiting rooms, laboratories, lavatories and 
storage space. The medical center located immediately south of the 
subject property is used by only two doctors, and in physical appearance 
is similar to a residence. The doctor's office located across the street 
from plaintiff's proposed medical center is in a garage attached to a . ,. 
residence where the doctor and his family live. A professional building 
located a short distance south of the subject property is in an area , 

classified B-3. :^':' /^ ■ V: . ^•- ■.■■....,- 

Plaintiff next contends that the demarcation between the R-2 
and the B-3 district on the west side of highway is arbitrary and 
capricious. We disagree with plaintiff's contention. A continuation of 
l86th Street west would create an actual boundary line between the 
residence district, in which plaintiff's subject property is situated, 
and the commercial district. The sectioning of boundary lines, unless 
arbitrary or capricious, is a matter of legislative judgment which 
requires our respect. Plaintiff has failed to demonstrate that the 
boundary line is arbitrary or capricious. Bennett v. City of Chicago , 
24 111. 2d 270, 181 N.E.2d 96 (1962). 

Finally plaintiff contends that the action of Village Board 
of Trustees in refusing to grant the variation recommended by the Zoning 



I 



-10- ■ :.. • • •: 

Board of Appeals was arbitrary and capricious, and that this court 
should direct the Village Board of Trustees to adopt the recommended 
variation. This contention is without merit for the same reasons that 
we gave in a response to plaintiff's contention that the Zoning classi- 
fication was invalid, The trial court found that plaintiff had not 
established that the action of defendant was arbitrary or capricious. 
A careful analysis of the evidence discloses no reason why we should not 
abide by this decision. The Judgment is affirmed. 

JUDGMENT AFFIRMED, 
BURKE, P.J,, and BRYANT, J., concur. 



i 



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No. 64-90 

IN THE 

APPELLATE COURT OF ILLINOIS 

FIFTH DISTRICT 



(ZT^I^^^ 



THE PEOPLE OF THE STATE 
OF ILLINOIS , 



Plaintiff-Appellee , 



-vs- 



WILBURN MORRIS, 

Defendant-Appellant , 



Appeal from the 
Circuit Court of 
Hamilton County, 
Illinois . 



Moran , J . 



This is an appeal from a judgment of the Cir- 
cuit Court of Hamilton County finding the defendant 
guilty of criminal contempt in a trial without a Jury, 
wherein the court sentenced the defendant to fifteen days 
in Jail and ordered him to pay a $100.00 fine. 

The petition for contempt was filed and sworn 
to by the then State's Attorney of Hamilton County, who 
alleged that he petitioned for the Circuit Court of Hamilton 
County to call a special grand Jury for the 17th day of 
October, 1963; that the defendant was the duly elected, 
qualified and acting Supervisor of the Town of McLeans- 
boro. County of Hamilton and State of Illinois; that the 



C 6 - i^ d 

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64-90 - 2 



Clerk of the Circuit Court of Hamilton County, pursuant 
to an order of the grand Jury, served a subpoena duces 
tecum on the defendant ordering him to produce "the 
supervisor's records for the defendant's term of office"; 
that on October 18, 1963 the Circuit Judge of said county 
did impound the records produced by the defendant until 
further order of the court; that on the first day of Novem- 
ber, 1963, the defendant appeared before the grand jury 
and after certain questions were propounded to him he was 
told that he could leave but was Instructed by the grand 
jury not to take the records that had heretofore been im- 
pounded by the grand jury. The petition then continues 
as follows : 

"8, On the 1st day of November, 1963, when 
the Grand Jury reconvened to rede libe rate , said re- 
cords were brought before the Grand Jury by the Sheriff 
of Hamilton County, and the Grand Jury began to de- 
liberate, whereupon the defendant appeared before 
the Grand Jury and after certain questions were pro- 
pounded to the defendant, the defendant asked the 
Grand Jury whether or not they had any further 
questions, and no further questions being asked the 
defendant, the defendant was informed that he could 
leave the presence of the Grand Jury. The Defendant 



- 2 - 



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64-90 - 3 



was instructed by the Grand Jury not to take records 
that had heretofore been impounded by the Grand Jury 
as the Grand Jury had not released the records. 
Whereupon the defendant argued violently with the 
Grand Jury and insisted that they were his records 
and he was going to take them from the Grand Jury 
and whereupon, the defendant got up from his chair 
and picked up the records from the table, and put 
them under his arm and started to leave with the im- 
pounded records, and when the defendant started to 
leave the Grand Jury Room with said records, the 
State's Attorney, who had been sitting in a chair 
next to the defendant, was standing facing the de- 
fendant, and the defendant stated to the State's 
Attorney of Hamilton County, "Van Winkle, you get 
out of my way," whereupon, the defendant shoved 
the State's Attorney backwards a distance of approxi- 
mately 7 to 10 feet, almost into a glass-wood book- 
case, and said pushing and shoving was done in- 
tentionally, wilfully, wantonly and without cause 
or Justification and during the time the defendant 
was making his exit from the Grand Jury Room with 
the impounded records under his arm, certain mem- 
bers of the Grand Jury were instructing the defendant 



- 3 - 



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64-90 - 4 



to leave the aforesaid impounded records as the re- 
cords had not been released by the Grand Jury. The 
State's Attorney of Hamilton County attempted to 
block the exit of the defendant from the Grand Jury 
Room by holding the door closed, whereupon the de- 
fendant appeared to take a crouched position and 
lunged at the State's Attorney with his head and 
shoulders; and the State's Attorney side-stepped 
the lunging or tackling of the defendant, and then 
the defendant did take a full swing that extended 
through the path of a half-circle with his right fist 
closed at the mid-section of the State's Attorney, 
and the State's Attorney did move backwards and 
the swing of the defendant did make contact with 
the suit coat of the State's Attorney, thereupon the 
defendant turned and left the Grand Jury Room. 
Whereupon the State's Attorney regained his position 
and left the Grand Jury Room and grabbed the impound- 
ed records that the defendant had locked under and 
in his left arm and hand. Whereupon the defendant 
grabbed the State's Attorney by his tie and at the same 
time placed a half-nelson hold around the neck of 
the State's Attorney. Thereupon the State's Attorney 
placed both arms around the mid-section of the De- 



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64-90 - 5 



fendant and the State's Attorney and the Defendant 
re-entered the Grand Jury Room and in the Grand Jury 
Room the Defendant's act of pulling on the State's 
Attorney's tie had a choking effect and when the De- 
fendant had the half-nelson around the State's Attor- 
ney, the Defendant attempted to throw the State's 
Attorney over his back and during this time the De- 
fendant on more that, one occasion did attempt to 
bite the left side of the State's Attorney's face near 
the cheek bone and the aforesaid episode was visible 
and witnessed by the Grand Jury and said act and/or 
acts of the Defendant named herein were intentional , 
wilful, wanton and in disrespect and disregard a*^ 
and against the dignity of the People of the State of 
Illinois and such act and/or acts obstructed the ad- 
ministration of justice. 

9. The Grand Jury was meeting in a room lo- 
cated on the second floor of the Court House in the 
County of Hamilton in McLeansboro, Illinois and 
said room is specifically located and known as the 
library room for the Honorable Charles E. Jones, 
Associate Circuit Judge of this Court. 

10. The Defendant did get outside the delibera- 
ting room of the Grand Jury with the aforesaid impound- 



- 5 - 



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64-90 - 6 



ed records, and make his way from the second floor 
of the Court House to the first floor of said Court 
House and to the West door of the said Court House 
in McLeansbord, whereupbn the State's Attorney in- 
formed Roy Nk fthodes to take the records from the 
Defendant because the Defendant was leaving the 
jurisdiction of the Grand Jury and the Grand Jury 
had not released the records and the records were 
impounded and the Judge of this Court, Charles E. 
Jones, was in the presence of Roy N. Rhodes and 
the Honorable Judge of this Court informed the de- 
fendant to release the impounded records to Roy N. 
Rhodes and the defendant announced that he was 
taking the records because they were his property 
and he was going to see a lawyer and whereupon the 
said Roy N. Rhodes announced to the Defendant that 
he was taking the records and the defendant released 
to Roy N. Rhodes the records and the said Roy N. 
Rhodes delivered the impounded records immediately 
to the Grand Jury which was deliberating. 

11. At approximately 11:00 to 12:00 A. M., 
the Bailiff of the Grand Jury, Dwight Parmley, re- 
ceived a telephone call asking that he interrupt the 
Grand Jury deliberation and call the Foreman, Hayden 



- 6 - 



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64-90 - 7 



Allardin, to the telephone and said party did not 
announce their name to the Bailiff. The said Bailiff 
did call the Foreman, Hayden Allardin, from within 
the deliberating room and the Foreman did have a con- 
versation with a person and said person announced to 
Hayden Allardin: "This is Morris, have you done any- 
thing yet", and then he said "Don't you let Van 
Winkle have them books". The conversation lasted 
a few minutes, whereupon the State's Attorney of 
Hamilton County went into the room where Hayden 
Allardin was talking on the telephone to the defend- 
ant and asked Hayden Allardin who he was talking to, 
and he said it was Mr, Morris. The State's Attorney 
did take the telephone from Mr. Allardin and inform 
Mr. Morris that it was not proper for him to have any 
discussion with a member of the Grand Jury outside 
the deliberating room and if he had anything to say he 
should come before the Grand Jury and the defendant 
did announce to the State's Attorney of Hamilton County 
that he had talked to the foreman of the Grand Jury and 
there was nothing that the State's Attorney could do 
about it and the State's Attorney knows that it was 
the defendant because the State's Attorney has con- 
versed with the defendant by telephone and since the 



- 7 - 



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64-90 - 8 



year of 1960, The said incident of the defendant 
talking to the foreman of the Grand Jury was in a 
threatening^ forceful and intimidating attitude and 
said incident caused the said Hayden Allardin to be- 
come highly excited and nervous and Hayden Allardin 
within a period of time of less than one houir, while 
at lunch, the telephone incident caused a pain in 
his chest and his breathing became difficult and pre- 
cipitated a heart attack and caused the Foreman^ 
Hayden Allardin, to suffer physical illness for more 
than three days and such illness was the most severe 
heart attack that Hayden Allardin had suffered in 
more than two years . 

12. At no time did any members of the Grand 
Jury or any members of the Court give the defendant 
any cause, reason or justification to commit any of 
the aforesaid acts so committed by the defendant, 

13. The aforesaid act and/or acts stated 
herein committed by the defendant were against the 
peace and dignity of the People of the State of Illinois 
and said act and/or acts were intentional, wilful, 
wanton and in disrespect of the Court and its process 
and did bring the Court disrepute and obstruct adminis- 
tration of justice. 



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64-90 



* * * 

WHEREFORE, THE PEOPLE OF THE STATE OF 
ILLINOIS PRAY: 

(a) This Petition for Criminal Contempt be set for 
hearing forthwith and the Clerk of this Court be 
directed and ordered to ^iVe notice to the defendant 
by mailing a copy of the Amended Petition to the de- 
fendant's last known address, return receipt requested 

(b) The Clerk of this Court cause a copy of this Peti- 
tion and notice of hearing be mailed to the attorney 

of record for the defendant in criminal causes Nos, 
63-3018, 63-3019, 63-3020 and 63-3021, now pending 
in this Court. 

(c) That upon the hearing of this Amended Petition 
for Criminal Contempt the defendant be adjudged 
guilty of criminal contempt of this Court and the 
Court find that the act and/or acts of the defendant 
were intentional, wilful, wanton and in disrespect of 
this Court and its process and such act and/or acts 
did bring the Court into disrepute and obstruct ad- 
ministration of justice. 

(d) For any other relief that the Court may deem 
necessary, fit and proper to uphold the dignity and 
respect of this Court. 



- 9 



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64-90 - 10 



TH EODORE VAN WINKLE 
State's Attorney for Hamilton 
County , Illinois 

The defendant moved to dismiss the petition 
prior to the hearing because it was so general and garbled 
that he was unable to determine from the petition what 
actual charges of contempt weire being made against him. 
His motion was overruled. 

The undisputed testimony indicates that the 
defendant was served a subpoena duces tecum on the 17th 
day of October, 1963, to appear before the grand jury of 
Hamilton County on the same day with all of his books and 
records for his term of office; that he appeared before the 
grand jury with his records on the 17th day of October, 
1963 and was examined extensively on the 17th and 18th 
of that month. At the end of the grand jury session on the 
18th, the defendant attempted to take his books and re- 
cords with him but the grand jury voted to impound them 
until it met again on November 1, The Circuit Judge, on 
the request of the grand jury, entered an order directing 
that the records consisting of the supervisor's daily entry 
book and the treasurer's account book be kept by the Sheriff 
of Hamilton County until the further order of the grand 
Jury of the Circuit Court, The defendant was again called 
before the grand jury when it reconvened on November 1, 



- 10 - 



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64-90 - 11 



1963 and asked more questions about his books and re- 
cords. During these three days he was examined in great 
detail about a $578.23 check that had been issued and 
about two $10.00 checks and a $75.00 check that he had 
failed to issue. 

The defendant tesWfied that he appeared be- 
fore the grand Jury in answer to the subpoena duces tecum 
and testified on October 17, October 18 and November 1; 
that he answered all the questions put to him; that he 
wanted to take his records with him at the conclusion of 
his testimony on October 18, and the state's attorney 
said, "You can't take those records; I am going to have 
them Impounded to use as evidence, " After the Judge 
entered the order impounding the records, the defendant 
understood they would be returned to him on November 1; 
that he was examined about two $10,00 checks and about 
a $100.00 check he hadn't issued to a certain person and 
was later indicted for not issuing one of the checks. He 
was never told at any time that he had a constitutional 
right not to answer questions. On November 1, 1963 when 
he started to leave with his books, the state's attorney 
told him he could not take the books because he was going 
to impound them. After a tussle with the state's attorney 
in the grand jury room, he went downstairs, with the 



-11- 



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64-90 - 12 



state's attorney following him. He there met a circuit 
judge who ordered him to turn the books over to a deputy 
sheriff, which he did. There was other conflicting testi- 
mony offered by both sides which we deem unimportant to 
the decision in this case. 

After hearing all of the evidence in the case, 
the trial judge found the defendant guilty of criminal con- 
tempt and sentenced him to 15 days in the county jail 
and fined him $100.00. The judgment order did not set 
out any facts constituting the offense. 

The defendant contends that the judgment order 
finding him guilty of criminal contempt is insufficient in 
law because it does not set out any facts constituting 
the offense; that his constitutional rights were violated 
and his conduct, which might otherwise have been con- 
temptuous was provoked by officers of the court. The 
state contends that defendant's acts constituted indirect 
contempt and that therefore it was not necessary for the 
trial court to set out the facts constituting the offense in 
its judgment order. 

Since in our view this was a direct contempt 
proceeding, it will not be necessary to pass upon the 
state's contention concerning the requirements for Judgment 
orders in cases of indirect contempt. 



12 - 



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64-90 - 13 



In a direct contempt proceeding the order find- 
ing contempt and fixing punishment therefor must set out 
facts constituting the offense so fully and certainly as to 
show that the court was authorized to make the order. 
(People V. Howarth, 415 111. 499; In Re Estate of Kelly 
285 111. App. 143 , 365 111. 174). The grand Jury is a 
constituent part of the court and contemptuous conduct 
before that body constitutes a direct contempt. (People 
V. Ryan, 412 111 54; People v. Skar, 30 111 2d 491.) 
Since the defendant was charged with improper conduct 
before the grand jury, he was charged with direct contempt 
and it was therefore incumbent upon the trial court to set 
out facts constituting the contempt fully and certainly. 
However, the Judgment order in this case merely found 
the defendant guilty of criminal contempt without any 
statement of the facts constituting the offense. It is im- 
possible to tell from this order whether the trial Judge 
found the defendant guilty of one or all of the many 
charges made in the long, rambling, incoherent petition 
for contempt filed by the then state's attorney of Hamilton 
County. The Judgment order In the present case is there- 
fore invalid because the court made no findings of fact 
constituting the offense of which it found the defendant 
guilty and we must therefore reverse this case. 



- 13 - 



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However, even if the judgment order were in 
proper form, our opinion would be the same for the Consti- 
tution of the State of Illinois provides that no person 
shall be deprived of life, liberty or property without due 
process of law. {Art. tl , Sec. 2.) "A defendant, guilty 
or innocent, is entitled to a fair, orderly and impartial 
trial in accordance with the law of the lend." (People 
v. Wagoner, 8 111 2d 188 at 198.) A person has a right 
to reasonable notice of the charge against him, (People 
v. Skar, 30 111 2d 491 .) 

The defendant was not served with the subpoena 
duces tecum, commanding him to produce all his township 
records, until the day the grand jury was impaneled. He 
obeyed the subpoena, appeared before the grand jury on 
three separate days and was examined in great detail about 
a $578,25 check which he had written and about three other 
checks, two for $10,00 each and one for $75.00, which he 
had not written. In his examination before the grand jury, 
he was badgered by a hostile state's attorney who frequent- 
ly questioned the truthfulness of his answers. At no time 
was he ever advised by the state's attorney or by the grand 
jury of his constitute , al right to refuse to answer question? 
which might tend to .ncriminate him or of his constitutional 
right to have coun;< I, He was indicted for official mis- 



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conduct in issuing the $578.25 check and refusing to 
issue the two $10.00 and one $75.00 checks. 

The long, rambling petition for contempt ( 
taking Up 12 pages of the abstract) did not give the de- 
fendant reasonable notice of the charges against him so 
as to enable him to properly prepare his defense. De- 
fendant's motion to dismiss this petition, made prior to 
the hearing, should have been allowed. In addition, the 
then state's attorney acted not only as the accuser but 
also as the prosecutor in the very case in which he was 
personally involved. In oral argument before this court, 
the present state's attorney, to his credit, stated in 
open court that he did not approve of the way the pro- 
ceedings involving this defendant were handled before 
the grand jury. 

For the foregoing reasons this case is re- 
versed . 



Publish Abstract Only. 

CONCUR: 

Edwa rd C. Ebe rspacher, P. J 

Joseph H. Goldenhersh, J. 




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50346 



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-QklY^i ISRAEL, ) (pTj:.^^_^^^ 

Plaintiff-Appellant, ) APPEAL FROM 

) 

vs, \ CIRCUIT COURT, 

YELLOW CAB COMPANY, A ) COOK COUNTY. 

Corporation, ) 

Defendant-Appellee. ) 

MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT. 

Plaintiff, David Israel, sued the defendant Yellow Cab 
Company for damages to his automobile incurred while parked in 
the street overnight. At the close of plaintiff's proof the 
court, in a jury trial, sustained defendant's motion for a directed 
verdict. Plaintiff appeals on the ground that the proof was suf- 
ficient to establish a prima facie case. 

A witness, Miss Muriel Browne-Miller, testified that she 
resided in the second floor apartment at 6821 S, Clyde Avenue, 
Chicago. At approximately midnight on the night in question she 
retired to her front bedroom and had begun to "doze off" when she 
heard what sounded like one automobile striking another. She 
ran from her room into a sun porch which adjoined it, "in a matter 
of seconds". When she reached the window she saw a Yellow cab in 
the street. When asked how she knew it was a Yellow cab she replied 
that the car was not only yellow in color but it had the cab light 
on the top. It remained stationary at a southeasterly angle about 
one foot away from the right rear of one of the cars parked at the 
curb. "In a matter of seconds" it backed up and proceeded up the 
street. At the time she was able to hear a noise "like metal 
dragging on the street as it pulled away". The weather was cl/ear, 
and the site was well illuminated by a mercury vapor street light. 
Because of the lateness of the hour, she returned to bed. The 



{ 



-2- 

next morning, a Sunday, she went down with her father to the site 
to "check out" the cars. There she saw the plaintiff's car and 
notified him. On cross-examination she said the vehicle, yellow 
in color, was a cab and that the light on top "said" cab. When 
asked; "But it didn't say Yellow Cab, did it?" she responded 
argument at ively, "Are there other cabs in Chicago that are yellow?" 
She saw no other cars proceeding in Clyde Avenue at the time. 

Plaintiff made a request to call Albert Adler, a Yellow 
Cab Company safety supervisor, as an adverse witness under Section 
60, and being denied this request called him as his own witness. On 
direct examination the witness testified that he was called by 
plaintiff's wife to investigate the damage to the car. He examined 
plaintiff's 1960 blue Mercury and found damage to the right rear 
quarter panel. He saw no yellow paint on the car. He took pictures 
which were introduced in evidence. He described the front of a 
Yellow cab, headlights, grill and the bumper. He said that a 
considerable portion of the front of a Yellow cab is chrome "just 
like any other car". The Yellow Cab Company has 13 garages in 
Chicago housing from 150, 200 to 250 cabs, depending upon the size 
of the garage. On an average normal day three quarters of the 
cabs are on the road. On cross-examination by defense counsel, 
he was asked whether based upon his many years of experience 
"as brought out by counsel here," he found that there was a Yellow 
cab involved. He responded: "Through the debris and through the 
scraping of her [sic] car you would have yellow paint on the right 
side of her [sic] car because the right side was damaged. The 
right rear of the tail light and bumper was pushed off to the,,, 
would mean the left front or left side of the cab would have been 
damaged". Plaintiff's objection was overruled. Plaintiff raises 



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-3- 



no issue on appeal as to this testimony; we refer to it only to 
examine the nature of the evidence which the jury, in its province, 
had to consider upon the question of the sufficiency of plaintiff's 
proof. 

In support of the trial court's directed verdict, defendant 
says that there was no testimony which linked the particular 
yellow vehicle or cab to the defendant; that the cab Miss Browne- 
Miller saw was yellow in color would not necessarily indicate it 
was one owned by the defendant; and further that there was no 
proof that the yellow automobile struck anything or that it was 
standing near the automobile owned by the plaintiff. 

The issue here presents a question as to whether, when all 
the evidence adduced is considered together with all reasonable 
inferences therefrom in its aspect most favorable to the plaintiff, 
there is a total lack of evidence to prove the necessary elements 
of plaintiff's case. A party should not be deprived of his right 
to a jury trial if he has produced any evidence which proves or 
tends to prove his claim, or from which reasonable inferences can 
be drawn which tend to support his claim. On a motion for directed 
verdict for the defendant, the trial court must consider all of 
the evidence in its aspect most favorable to the plaintiff to- 
gether with all reasonable inferences to be drawn therefrom, and 
if, when so considered, there is any evidence standing alone and 
considered to be true, together with the inferences that may 
legitimately be drawn therefrom, which fairly tends to support the 
plaintiff's case, the court should not direct a verdict in favor 
of the defendant. Willoughby v. Moyer, 50 111. App. 2d 462, 465, 
466, 200 N.E.2d 522 (1964). 

The questions of preponderance of the evidence or the 



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credibility of witnesses are not involved. 

We believe that from the plaintiff's uncontradicted proof 
in its aspect most favorable to him, together with all reasonable 
inferences and intendments drawn therefrom, the jury could have 
reasonably found that a Yellow cab of defendant was involved and 
caused the damage to plaintiff's parked car. It is, therefore, 
our opinion that the trial court improperly concluded the matter 
at the close of plaintiff's case and for that reason we reverse 
the trial court's ruling and remand the cause for a new trial. 

REVERSED AND REMANDED FOR NEW TRIAL. 

BURMAN, P.J., and MURPHY, J., concur. 



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.:v. 



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Richard G. Bleloch and 
for appellant. 

Jesmer & Harris , ofy/gHiickq.o, for appellee. 



J. Kelley, Jr., of Chicago, 



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49878 

PEOPLE OF THE STATE OF ILLINOIS, 
Plain tiff -Appellee, 

V. 

HENRY McCLELLAN, 

Defendant-Appellant. 



kYYY.k\. FROM 




CIRCUIT COURT 
COOK COUNTY 

CRIMINAL DIVISION 



MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT: 

In a trial without a jury Henry McClellan was found guilty 
of possession of a narcotic drug commonly known as heroin, as charged 
in an indictment, and sentenced to a term of imprisonment of not 
less than 3 years nor more than 10 years. He appeals from the 
judgment. 

Initially testimony was adduced in a hearing on a motion 
to suppress evidence secured on an alleged unlawful arrest and 
search. Jimmy Roberts, a policeman, assigned to the Vice and 
F Narcotic Control Division of the Chicago Police Department^ testified 
that on November 29, 1963, at approximately 1:30 A.M., he and his 
partner, Harold Johnson, were on the corner of 63rd Street and 

I Dorchester Avenue in Chicago. They were seated in a parked auto- 
mobile. At that time they had a conversation with an informer by 
the name of Slick. He had provided information in the past and on 
three separate occasions his information had led to arrests. On one 
occasion he had attempted to make a sale of narcotics for the officers. 
Roberts further testified that Slick was a narcotic addict. In 

I answer to a question by defendant's attorney, Roberts answered that 
he would accept what Slick "tells me. He has proven to be truthful 

I in the past." On this occasion the informer told the two policemen, 

L "That dude is dirty," simultaneously pointing out the defendant, 

who was walking in the vicinity. The expression, "That dude is dirty,", 

I meant that the defendant had narcotics on his person. The two 



-2- 

policemen then followed the defendant into a restaurant. A convers- 
ation was had with the defendant wherein he denied that he had any 
narcotics on his person. His trench coat, which was located on a 
stool next to him, was then searched. In the right front pocket 
was found a rubber thumb, containing 20 tin-foil packages. The 
defendant was asked what it was and he said "Jive," a colloquial ex- 
pression for narcotics. His explanation was that he surreptitiously 
took the narcotics from a seller who had "stashed" or hidden the 
narcotics behind a can in an alley near 43rd Street. The defendant 
has been a narcotics addict since 1947. 

The defendant was taken into custody and the 20 packages 
taken from him were delivered to the Chicago Crime Laboratory. The 
defendant stipulated that if policeman Roberts' partner were called 
to testify his testimony would be substantially the same. Based on 
this evidence the court denied defendant's motion to suppress the 
evidence. The defendant then stipulated that the evidence adduced 
during the motion to suppress would be the same at the trial and also 
that if the chemist from the Chicago Crime Laboratory were called 
he would testify that the packages submitted to him by policeman 
Roberts contained heroin. It was stipulated that on November 15, 1945, 
defendant was found guilty of larceny and sentenced to from 1 to 2 
years in the Penitentiary; that on May 12, 1948, he was found guilty 
of armed robbery and sentenced to from 2 to 5 years in the 
Penitentiary and that on March 13, 1953, he was found guilty of 
robbery and sentenced to from 5 to 8 years in the Penitentiary. 

The defendant, in urging reversal of the judgment, says that 
the arresting policeman did not have reasonable grounds to make the 
arrest and that consequently the search and seizure were illegal. He 
maintains that the reliability of the informer was not proved and that 
the mere accusation of an addict that a certain person is in possession 



-3- 

of narcotics, without stating the underlying facts upon which belief 
is based, is not sufficient to justify an arrest without a warrant. 
The policemen testified that on approximately three separate oc- 
casions the informer had supplied information which had led to 
arrests and that on one occasion he had attempted to make a controlled 
sale of narcotics. ^e think that the record supports the finding 
that the reliability of the informant was established and that the 
arrest and search were lawful. See People v. McFadden, 32 111. 2d 101; 
Certiorari denied by U.S. Supreme Court on October 11, 1965, McFadden 
V. Illinois, October 1965 Term, Docket No. 29 Misc. See also Draper 
V. United States, 358 U.S. 307 and People v. McCray, 33 111. 2d 66. 

The informer, through his past actions, had proven himself 
to be reliable. He approached the two policemen, and, in the 
language of the street, informed them that the defendant had narcotics 
on his person. In the instant case, as in McFadden, the policemen 
had more than just the tip from a person characterized as credible. 
The informant had proven to be credible in the past on three separate 
occasions. The defendant testified that he purloined the narcotics. 

For these reasons the judgment is affirmed. 

JUDGMENT AFFIRMED. 

BRYANT, J., and LYONS, J., concur. 



(fTi^^^d-^. 



APPEAL FROM 

CIRCUIT COURT 

COOK COUNTY 




49947 

CATHERINE P. SCHOEFFLER, 

Plaint iff -Appellant, 

V, 

THE VILLAGE OF OAK PARK, a 
Municipal Corporation, and 
GLENN SUNDE, Commissioner of 
Public Works of the Village of 
Oak Park and J. M. Corbett Co., 
an Illinois Corporation, 

Defendants-Appellees . 

MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT: 

Catherine P. Schoeffler filed a three count amended 

complaint in Chancery for an injunction restraining the Village of Oak 

Park and J. M. Corbett Co. from the widening of Washington Boulevard 

/ between Maple and Harlem Avenues in Oak Park, from removing any trees 

on the parkway therein, from in any way implementing a resolution of 

I May 21, I962, adopted by the Board of Trustees of the Village authorizing 

j the project, for attorney's fees, for a direction that protective guard 

I rails be installed between plaintiff's property line and the sidewalk, 

that Glenn Sunde be required to give an accounting of his Income as Kip 

Engineering Company for a reasonable period before and since becoming 

Commissioner of Public Works for the Village, that the Trustees of the 

Village be required to hold a public meeting preceded by reasonable 

notice as to the resolutions providing for the improvement and that the 

Village and Board of Trustees be required to pass a resolution nullifying 

the previous resolution providing for the widening. Defendants answered 

and plaintiff replied. Thereupon the defendants move for a summary 

judgment supported by an affidavit. Plaintiff filed a reply to the 

motion for summary judgment supported by a counter-affidavit. On November 

X 15 > 1963j the court entered a summary judgment in favor of defendants and 

T ^ dismissed the complaint. There was no appeal from this final order. On ^ 

April 20, 1964, plaintiff filed a petition which she calls a motion 

I (under Section 72 of the Civil Practice Act) asking that the cause be 



-2- 

reinstated; that she be allowed to file amended pleadings; that the 
defendants be required to answer and for such other relief as may be Just. 
She supported her petition with an affidavit and certain exhibits. The 
Village filed an answer and an affidavit, accompanied by an exhibit. The 
court denied plaintiff's petition. Plaintiff, appealing, prays that the 
order be reversed and that the cause be remanded with directions to hold 
hearings, ascertain damages and determine whether other relief shall be 
awarded. 

For a long time prior to the filing of the complaint, plaintiff, 
a widow, owned the fee title to land known as 401 South Maple Avenue, 
being a corner lot fronting on Maple, paralleling Washington Boulevard on 
its north side for 172 feet and extending west to Harlem Avenue. Harlem 
Avenue at this intersection is the dividing line between Oak Park and 
Forest Park, On May 21, 1962, the Oak Park Village Trustees passed a 
resolution for the improvement of Washington Boulevard to include: (a) 
widening from Harlem Avenue east to Maple Avenue, (b) widening from Austin 
Avenue west one-half block, (c) repairs of curbs and pavements and (d) 
resurfacing the Boulevard. Washington Boulevard is also known as U. S. 
Highway 20 and State Route 5« Motor fuel tax monies accrued to the Village 
were to be used. The project was approved by the State Highway Department. 
No notification to property owners affected by the proposal was given. No 
public hearings were announced or scheduled. The contract was let and 
the improvement was completed. When the project was accomplished, 
plaintiff's frame house was 9 feet from the edge of the road and her frame 
store building on the corner of Washington Boulevard and Harlem was 7 feet 
5 inches from the edge of the roadway. The widening at the intersection 
at Harlem Avenue was to provide a left turn lane. The widening of the r" 
roadway was within the existing right of way. The part of the roadway 
widened consisted of the parkway on each side of the street between the 
street and the existing sidewalk. The record shows that the entire 66 
foot right of way was dedicated by plat in 1869. The widening was done by 



-3- 

Corbett Construction Company pursuant to a contract with the State of 
Illinois, The Village was not a party to the construction contract. No 
special assessments were levied in connection with the improvement and no 
part of plaintiff's property was taken. The defendant, Glenn Sunde, had 
not been employed by Forest Park for over 3 years at the time of the 
construction. There was no showing made by plaintiff of interest on the 
part of Sunde other than speculation. 

Plaintiff maintains that she has a right to seek relief under 
Section 72 of the Civil Practice Act because she discovered about 5 months 
after the judgment was entered that certain matters, alleged in the 
affidavit, supporting defendants' motion for the judgment were untrue 
and constituted a constructive fraud upon the court. A motion under \ 

Section 72 of the Practice Act cannot be used as a substitute for an | 

i 
appeal. The ordinance of the town of Cicero now relied upon by the plain- 
tiff is the original improvement ordinance for the paving of a part of 
the dedicated right of way of Washington Boulevard and was available to 
plaintiff prior to the motion for summary judgment. To set aside a 
judgment pursuant to Section 72 of the Practice Act, plaintiff must set 
forth facts showing that she was prevented from having a fair trial or 
hearing on the issues. Facts that simply constitute additional evidence 
are not relevant. Plaintiff's petition and affidavits show additional 
evidence and nothing to indicate that she did not receive a full and 
complete hearing in the original trial. Plaintiff calls attention to 
her diligence in gathering evidence after the summary judgment was 
entered. The time for diligence was before the judgment was entered. 
We agree with the defendants that the local improvement act 
provisions requiring a public hearing are not applicable to the widening 
of Washington Boulevard because plaintiff's property was not assessed 
pursuant to this act. No public hearing was required by law for this 
I improvement. The Village did not widen the street. If it had widened 



tl' 



i 



_4- 

the street It would have the right to do so. See Articles 11-80-2 

and 11-61-2 of Chapter 24, 111. Rev. Stats. I963. The summary Judgment 

was the proper remedy because there were no disputed Issues of material 

facts. The State of Illinois had the right to pave Washington Boulevard 

within the dedicated right of way whether the plat was a statutory or a 

common law plat. If the Village had jurisdiction over the Boulevard it 

would have a right to pave within the dedicated right of way. In 

Gridley v. City of Bloomington, 88 111. 55^, the court said, 5^^i 

"It is plain defendant has no other interest in 
the street in front of his property than any other 
citizen of the municipality.** 

It makes no difference whether the State of Illinois has an easement 

(common law plat) or fee (statutory plat) for roadway purposes, as the 

state would have the right to pave it in either event. The public had 

a right to rely on the dedication of the entire 66 foot right of way pf 

Washington Boulevard and had a right to use the entire right of way for 

street widening purposes. 

The record shows a substantial basis for the entry of the 

summary judgment and for the subsequent denial of Section 72 of the 

Civil Practice Act, Therefore the order denying plaintiff relief is • 

affirmed, 

ORDER AFFIRMED. 

BRYANT, J., and LYONS, J., concur. 



APPEAL FROM MUNICIPAL COURT 
OF CHICAGO, FIRST MUNICIPAL 
DISTRICT, CIRCUIT COURT OF 
COOK COUNTY. 







I 



49766 

LUDWIG A. HIRZ, 

Plaintiff -Appellee, 

V. 

STEPHEN LEE and LILLIAN H. LEE, 
Defendants-Appellants. 

MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT: 

This is an appeal from a judgment entered in favor of 
plaintiff-appellee in the Municipal Court of Chicago, First Municipal 
District, Circuit Court of Cook County, in the amount of $1,224.00. 

This is an action for work, labor and materials. Plaintiff's 
Statement of Claim alleged that carpentry work and labor were performed 
and materials furnished on premises located at 1237 Carmen Avenue, 
Chicago, Illinois. Plaintiff also alleged that his account with defend- 
ants became an account stated on August 1, 1960. Defendants* Answer to 
the Statement of Claim admitted that the carpentry work had been per- 
formed, but further alleged that the work was performed in an unworkman- |] 
like manner. On August 3, 1961, plaintiff requested a Bill of 
Particulars. Defendants filed a Bill of Particulars alleging in detail 
the unworkmanlike quality of the work. Defendants also stated in their v^ 
Bill of Particulars that the aforesaid work of plaintiff was performed 
without the procurement of a permit or approval of the plans by the City 
of Chicago. Defendants then presented a Motion for Summary Judgment 
alleging that the failure of plaintiff to procure a permit made any 
contract between the parties illegal and, as a matter of law, unenforceable. 
This motion was sustained and plaintiff appealed. 

In Hirz v. Lee . 41 111. App.2d 145, 190 N.E.2d 607 (1963), 
this court held that the failure to procure a permit would be illegal 
only if plaintiff was to procure the permit and that a determination, as 
to which party was to procure the permit, was a jury question. The court 
reversed the action and remanded it to the lower court for trial. 



-2- 

I At the trial, plaintiff presented evidence on a quantum \\ 

meruit theory for work, labor and services performed and a quantum } 
valebant theory for materials supplied. There was no evidence presented 
as to the account stated. Plaintiff also presented evidence that 
defendants had promised to get a permit from the Building Department of 
the City of Chicago. 

Defendants presented evidence that the work performed by plain- 
tiff was not performed in a workmanlike manner. Defendants also 
presented evidence that plaintiff was to get the building permit; that 
plaintiff, in performing the carpentry work, had not complied with the 
Building Code of the City of Chicago; and that an express contract 
existed between the parties in which they agreed that certain conditions 
were to be met by plaintiff. In support of the latter contention, 
evidence was submitted that defendant, Lillian H. Lee, contacted Architect 
Stauber and requested him to prepare plans for a remodeling of the resi- 
dence; that Stauber agreed to furnish the plans and do the required work 

t for not more than $5,000.00; that Stauber also agreed to hire others to 
perform the actual remodeling; and that plaintiff was hired by Architect 
Stauber, his wages set at $5.20 per hour, said sum being agreed upon by 
defendant, Lillian H. Lee. 

f It is plaintiff's position that he performed certain work and 

supplied materials and that because the jury rendered a verdict in his 
favor, they must have necessarily found that: one, plaintiff performed 
the work in a workmanlike manner and supplied the necessary materials ; and 

(two, that dependants were the parties to procure the permit. 
It is defendants' position that: one, the verdict of the trial 
court is contrary to the manifest weight of the evidence; and two, the 
trial court committed prejudicial error by excluding certain testimony and 
exhibits of defendants and by refusing instructions relevant to defendants' 
theory of the case. 



-3- 

Under the Civil Practice Act, Illinois Revised Statutes, 
(1963) Chap. 110, Sec. 33 (1), the common counts shall not be used. 
Actions for work, labor and services and for materials furnished were, 
at common law, classified as common counts and were frequently referred 
to as actions in quantum meruit and quantum valebant respectively. There 
has been a tendency by the courts, however, to treat such actions as one 
in general assumpsit. Beatrice Foods Co. vs. Gallagher . 47 111. App.2d 
9, 197 N.E.2d 274 (1964). An action in general assumpsit is brought on 
the theory that an implied promise is raised by the existence of an 
executed consideration. We conclude that plaintiff can recover on his 
Statement of Claim if facts of an executed consideration exist. 

Defendants admit the performance of work by plaintiff. The 
only issue raised by defendants' Answer was that the work was not performed 
in a workmanlike manner. The jury heard the evidence relating to this i. 
issue and found in favor of plaintiff. An examination of the record l' 
reveals tlr\ere was sufficient evidence for the jury to so find. We will not' 
disturb that result. 

Defendants further allege, in support of their contention that 
the verdict of the jury was contrary to the manifest weight of the evidence, 
that defendants introduced evidence, through the testimony of defendant, 
Lillian H. Lee, that plaintiff was to procure the permit. There was also, 
however, testimony by Richard Stauber, the architect who drew the plans 
for defendants, that defendant, Lillian Lee, informed him that her husband, 
defendant, Stephen Lee, would procure the permit. The jury heard all the 
evidence and found in favor of plaintiff and we will abide by their 
findings. 

Defendants next allege that error was committed by the trial 
court. The first allegation of error concerns the testimony of Donald 
Nordine concerning plaintiff's non-compliance with the Building Code of 
the City of Chicago. Defendants contend that this testimony should have 
been admitted to show that the contract was illegal. We disagree with 



I 



_4- 

the defendants' contention. This Issue was not raised in defendants' 
Answer. Furthermore, it was not raised in the defendants' Bill of 
Particulars. Any evidence regarding non-compliance with the Building 
Code was properly stricken as being immaterial to the Issues of the 
case. The defendants' Exhibit No. 1, showing how the work did not comply 
with the Building Code, was properly stricken for the same reason. 

The defendants' second allegation of error is that all of 
defendants' instructions, six in number, were improperly refused by the 
trial court. A careful examination of the six instructions reveals 
that they were properly refused by the trial court. There was no error 
committed. 

For the above reasons, the judgment is affirmed, 

JUDGMENT AFFIRMED. 

BURKE, P.J., and BRYANT, J., concur.